December 12, 2010
There has been a resurgence of "hippies" in political and constitutional discourse. Yet another example is Paul Krugman's post today at the NYT. Krugman criticizes a column in WaPo by Dana Millbank for praising President Obama for "punching the hippies" and rewriting recent health care reform history "as a story of how those DF hippies got in the way, until the centrists saved the day." Although Millbank does not use the word "hippies" in his column, the "hippie" motif - - - including the twinned adjectives acronymized as "DF" - - - has been percolating with more and more energy of late.
Thus, it's a good time to recall US Dep't of Agriculture v. Moreno, 413 U.S. 528 (1973), also affectionately known to many students as the "hippie foodstamp case." In Moreno, the Court held a provision unconstitutional even as it applied rational basis review under the equal protection clause. As the Court stated:
The legislative history that does exist, however, indicates that that amendment was intended to prevent so-called "hippies" and "hippie communes" from participating in the food stamp program. See H. R. Conf. Rep. No. 91-1793, p. 8; 116 Cong. Rec. 44439 (1970) (Sen. Holland). The challenged classification clearly cannot be sustained by reference to this congressional purpose. For if the constitutional conception of "equal protection of the laws" means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. As a result, "[a] purpose to discriminate against hippies cannot, in and of itself and without reference to [some independent] considerations in the public interest, justify the 1971 amendment.
413 US at 527-528.
Moreno paved the way for the "animus" exception to a legitimate government interest that decisive in Romer v. Evans and is being argued in the Proposition 8 appeal now under consideration by the Ninth Circuit.
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