Expressivism, Empathy and Equality

In this article, Professor Godsil argues that the Supreme Court should not limit its application of heightened scrutiny to facially neutral government actions motivated by discriminatory intent, but rather, that the Court should apply such scrutiny when the challenged government action expresses contempt or hostility toward racial, ethnic, and gender groups or constitutes them as social inferiors or stigmatized classes. This article builds upon recent scholarship seeking to transplant this form of expressivism from the Establishment Clause to the Equal Protection context. However, this article contends that this scholarship has misconceived the test to be applied. For any expressive theory, the operative step is determining whether a government action sends a proscribed message. Most expressivist scholars have argued that the meaning of government action should be determined from the perspective of a “universal” objective observer; the standard adopted by Justice O’Connor in the Establishment Clause Cases. Professor Godsil argues that a universalist objective observer standard will underserve the goals of expressivism and the Equal Protection Clause by marginalizing the views of those affected by the government action. This article proposes instead that the meaning be determined from the perspective of a reasonable member of the allegedly affected community. This refined expressive harm test will require the judge to empathize with the affected community to determine how a reasonable member of that community would view the challenged action. A reasonable community member standard will also lead to a greater degree of objectivity in judicial decisions because the individual judge’s views will not necessarily prevail.