basic human rights of members of groups that have historically been subjected to discrimination, including the right of such group members to live in peace where they wish.57

The Court responded to this argument by conceding that these interests were compelling, and by conceding that the ordinance promoted those interests.58 The Court held, however, that the ordinance nevertheless failed the strict scrutiny test, because it was not "necessary" to accomplish the asserted interests."9 The Court argued that because there were adequate content-neutral alternatives available to St. Paul, the argument that the ordinance was "necessary" was undercut.60

The Court's treatment of this problem might be seen as simply a straightforward application of the strict scrutiny test, in which the government simply failed to sustain its burden under the "second prong," of the test, which normally requires that it employ the "least restrictive means" available to accomplish objectives.61

its

57 See 112 S.Ct. at --.

58 Id. at --. ("We do not doubt that these interests are compelling, and that the ordinance can be said to promote them.")

59 Id. at --. ("But the 'danger of censorship' presented by a facially content-based statute, requires that that weapon be employed only where it is 'necessary to serve the asserted [compelling] interest.'") (citations omitted).

60 Id. at --. ("The existence of adequate content-neutral alternatives thus 'undercuts significantly' any defense of such a statute.") (citations omitted).

61 See, e.g., Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S. 115, 126, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93, 16 Media L. Rep. 1961 (1989) ("The

It is possible, however, that something deeper is at work in the R.A.V. opinion. The Court's analysis comes very close to suggesting that governmental disagreement with a viewpoint will never survive strict scrutiny review. The dispositive question in this case, according to the Court, was whether the ordinance was "reasonably necessary to achieve St. Paul's compelling interests. "62 The Court held that "plainly" the ordinance was not "necessary," because "[a]n ordinance not limited to the favored topics" would have "precisely the same beneficial effect. The Court then went

1163

on to emphasize, yet again, the idea that viewpoint discrimination is anathema in First Amendment jurisprudence:

In fact the only interest distinctively served
by the content

limitation is that of

displaying the city council's special
hostility towards the particular biases thus
singled out. That is precisely what the First
Amendment forbids. The politicians of St. Paul
are entitled to express that hostility--but

Government may, however, regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest.") (emphasis added). See also, Norman v. Reed, 112 S.Ct. 698, 116 L.Ed.2d 711, 60 U.S.L.W. 4075 (1992); Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L. Ed. 2d 231 (1960) ("The breadth of legislative abridgement must be viewed in the light of less drastic means for achieving the same basic purpose.").

62 112 S.Ct. at

63 Id. at --.

not through the means of imposing unique

limitations

upon speakers

who (however

benightedly) disagree.“

This notion that there are some governmental motivations that will always be ruled "out of bounds" under strict scrutiny is by no means foreign to constitutional law. In equal protection cases, for example, the Court normally applies "strict scrutiny" to racial classifications"--creating at least the possibility that some racial classifications might be sustained because they meet the "compelling interest" and "narrow tailoring" requirements. Thus the Court has noted that "a racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification." And indeed, in its "affirmative action" cases, the Court has clearly left open the possibility that some affirmative action plans will survive strict scrutiny review.67

65 See, e.g., Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L. Ed. 2d 1010 (1967). See generally John Nowak and Ronald Rotunda, Constitutional Law § 14.8 (4th ed. 1991).

66 Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 60 L. Ed. 2d 870 (1979).

67 A program that is designed to vindicate the compelling interest in remedying the effects of past racial discrimination, and that is narrowly tailored to the achievement of those objectives, will, at least in theory, be sustained by the Court. See Richmond v. J.A. Croson Co., 488 U.S. 469, 497-508, 109 S.ct. 706, 723-29, 102 L.Ed.2d 854 (1989). (This portion of the plurality opinion of Justice O'Connor in Croson was joined by Chief Justice Rehnquist and Justices Kennedy, Stevens, and White-thus constituting a majority of the Court.)

Yet the Court in its modern equal protection jurisprudence has also made it abundantly clear that it will never sustain a race-based classification that "stigmatizes" a racial group, or that carries the message that members of a racial group are

68

inferior." The Court has thus come to the position that in matters

relating to integration of public facilities and services, "no continued racial will be constitutionally

discrimination

70

tolerated. 169 It is particularly important to note that this per se rule is followed even by those Justices who are most predisposed to permit race-based classifications in affirmative action cases. Similarly, in Commerce Clause cases the Court normally employs a balancing test to determine if state regulation of interstate

68 See, e.g., Turner v. City of Memphis, 369 U.S. 350, 82 s.ct. 805, 7 L.Ed.2d 762 (1962); State Athletic Comm'n v. Dorsey, 359 U.S. 533, 79 S.Ct. 1137, 3 L.Ed.2d 1028 (1959); New Orleans City Park Development Ass'n v. Detiege, 358 U.S. 54, 79 S.Ct. 99, 3 L.Ed.2d 46 (1958); Muir v. Louisville Park Theatrical Ass'n, 347 U.S. 971, 74 S.Ct. 783, 98 L. Ed. 1112 (1954); Gayle v. Browder, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114 (1956); Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776 (1955); Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).

69 John Nowak and Ronald Rotunda, Constitutional Law § 14.8 at 628 (4th ed. 1991) citing Alexander v. Holmes County Bd. of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L. Ed. 2d 19 (1969).

70 See, e.g., Regents of the University of California v.

Bakke, 438 U.S. 265, 357-58, 98 S.Ct. 2733, 2782, 57 L.Ed.2d 750 (1978) (Brennan, J., concurring in the judgment in part and dissenting in part) (joined by White, Marshall, & Blackmun, JJ.) (Pronouncing the "cardinal principle" that "racial

classifications that stigmatize--because they are drawn on the presumption that one race is inferior to another or because they put the weight of government behind racial hatred and separatism-are invalid without more.").

commerce violates the Constitution.71

But when a state's motivation

in regulating interstate commerce is economic protectionism, the Court does not employ its balancing methodology, but instead invokes what is essentially a per se rule invalidating such legislation.7

It is possible to discern a pattern in these various strains of constitutional law. There are some constitutionally impermissible reasons for enacting laws that will essentially result in their automatic invalidation, effectively "shortcircuiting" at the outset any attempt to justify such laws by resort to demonstrations of compelling governmental interests. There are certain "cardinal principles" that emerge in constitutional law that tend to override all competing considerations. These principles often appear as injunctions against government action based upon certain forms of "antagonism." Thus the government may never operate out of antagonism for one

71

See Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.ct. 844, 25 L. Ed. 2d 174 (1970).

72 See City of Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2535, 57 L. Ed. 2d 475 (1978). ("Thus, where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected.").