Abstract

Excerpted From: Leah M. Litman, Disparate Discrimination, 121 Michigan Law Review 1 (October, 2022) (390 Footnotes) (Full Document)

There are currently two tracks for unintentional discrimination claims. Say a plaintiff brings a constitutional religious discrimination claim. That plaintiff would succeed if they showed that a law had the effect of treating a comparable secular entity more favorably than the law treated the plaintiff's religious exercise. But a racial minority who brings a race discrimination claim must show more. The plaintiff bringing a race discrimination claim would not win even if a law resulted in greater burdens on racial minorities as a group; nor would the plaintiff win if a law resulted in a comparable white individual being treated more favorably than a person of color.

These are the two tracks for so-called unintentional discrimination claims-- claims that do not allege a government decisionmaker intentionally sought to disadvantage a particular group. The two tracks appeared in the Supreme Court's October 2020 Term. In Brnovich v. Democratic National Committee, the Court held that laws resulting in racially discriminatory effects do not necessarily violate the Voting Rights Act. (The Court had previously held such laws do not violate the Constitution.) The Court went out of its way to say that, in addition to showing that a law results in a significant disparity between different racial groups (that is, a disparity between all Black voters on the one hand and all white voters on the other), the plaintiffs had to show that the burden imposed by the law was severe, that the law “departs from ... standard practice,” and that the law does not serve a legitimate, valid state interest. Yet a little more than a week before Brnovich, the Court concluded that even where a religious entity has not shown that a law results in religious groups being treated worse than nonreligious groups, the law is still subject to the most exacting judicial scrutiny and, as a result, likely unconstitutional--in part because the law has the potential to produce discriminatory effects on religious entities, even if it has not actually done so.

The dichotomy between the Court's racial discrimination and religious discrimination cases is even more stark with respect to the coronavirus cases the Court decided on the shadow docket during its October 2020 Term. (The shadow docket refers to the set of orders and occasional opinions that the justices issue without full briefing and oral argument, often disposing of requests for extraordinary relief, such as stays of lower court opinions or injunctions.) Many of these cases fell into two categories--the first were religious liberty challenges to public health measures designed to contain the spread of COVID-19, and the second were voting rights challenges to restrictions that allegedly increased voters' risk of exposure to the virus.

In the cases on religious liberty, the Court adopted a standard that is more favorable to plaintiffs. The Court held that a plaintiff makes out a presumptive case of unconstitutional discrimination if a law or policy results in “any comparable secular activity” being treated “more favorably than religious exercise.” Under this standard, plaintiffs do not have to show that a law or policy treats religious entities as a group worse than secular entities or that a law or policy results in greater burdens on religious activities than nonreligious ones. All plaintiffs must establish is that a law or policy leads to a comparable secular activity being treated more favorably than religious activity. Part of what makes this new standard so striking is how broadly the Court has defined “comparable” or “similarly situated” secular activities. It has equated, among other things, outdoor “camp grounds” with in-home gatherings for religious exercise, asserting that the government cannot permit people to gather at camp grounds if it prohibits in-home religious gatherings because the two activities pose a similar risk of COVID-19 transmission. But if outdoor camping and indoor at-home gatherings are comparable for purposes of COVID-19 transmission, then the universe of secular activities that courts would treat as comparable to religious activity is very large and includes many activities that may not be all that comparable. And if a law cannot regulate religious activity if it fails to regulate not-all-that comparable secular activity, then many laws will be vulnerable to constitutional challenges.

The Court does not use anything like that standard in racial discrimination cases. In racial discrimination cases, plaintiffs must show, among other things, that a law results in racial minorities, as a group, being treated worse than whites as a group--not that people of color are treated worse than a particular subset of comparable white individuals. And in constitutional cases, plaintiffs must show that government officials intended to disadvantage racial minorities, in addition to showing that a law results in greater disadvantages on racial minorities.

Were the Court to use the standard from religious discrimination cases in racial discrimination cases, the voters who sought expanded access to absentee voting during COVID-19 would likely have prevailed. All they would have needed to show was that a state allowed some white voters (such as elderly voters or voters with certain health conditions) to vote absentee but did not provide the same opportunity to racial minorities, who were comparably situated with respect to the state's interest in the prevention of fraud. In part because of the low incidence of fraud in absentee voting, as well as how broadly the Court has defined “comparable” groups in the religious discrimination cases, that showing would not have been particularly difficult to make. Or consider how the new religious discrimination standard would work in the employment or housing context, two areas of law that prohibit some instances of unintentional discrimination. Using the religious discrimination standard, a plaintiff would be able to succeed on an employment discrimination or fair housing claim if they could show that a single, some what comparable white employee or a single, somewhat-comparable white tenant was treated better than a racial minority (even if unintentionally).

This Article offers one theory that can explain the Court's differential treatment of religious discrimination and racial discrimination claims. It does so not to make a definitive claim about what is actually psychologically motivating the justices. Instead, it offers an account that can plausibly explain the trajectory of the Court's cases and predict where they may be headed. It tries to understand the two tracks of unintentional discrimination claims by way of a comparison and contrast to political process theory, the influential theory that was supposed to provide a blueprint for judicial review. Political process theory generally recommends that courts adopt a deferential form of judicial review except in certain cases, including those in which a law affects a disfavored minority. From its origins, courts and scholars understood the theory to call for especially close judicial scrutiny of laws and policies that negatively affect racial minorities. After all, racial minorities have historically been excluded and disadvantaged by the political process, and for various reasons, they have found it difficult to form successful coalitions in the political process and to enact their preferred policies into law.

It has become passé to note that the modern Court does not follow that aspect of political process theory. The Court affords the same degree of judicial scrutiny to laws disadvantaging white individuals as it does to laws disadvantaging racial minorities. Based on these cases and others, scholars have surmised that the Court has not just rejected political process theory but perhaps even inverted it by providing greater protection to majoritarian groups, or groups that are politically powerful, than to historically disadvantaged minority groups.

But there is another, albeit related, way of understanding the dynamic in the Court's treatment of unintentional religious discrimination claims in particular. One theory that could explain these cases would be that at least some of the justices believe certain religious groups, specifically conservative, (often) Christian groups, are socially powerless and subject to rampant discrimination, particularly in the private sphere. That is, the Court might believe that conservative Christians face a greater risk of social exclusion and subordination than racial minorities do. That belief could explain why the Court would adopt a presumption that laws resulting in some disadvantage on some religious groups are the product of unconstitutional discrimination, but laws that result in greater burdens on racial minorities are not--because prejudice and discrimination against conservative religious groups are more common.

Understood in that light, the Court is not affording heightened judicial protection to majoritarian groups or the politically powerful as such; it is affording heightened protection to groups that it perceives as either or both socially powerless and subject to widespread discrimination in the present day. And one indicium that it uses to assess a group's power seems to be whether the group's views are sufficiently well-represented and respected in elite cultural spaces (such as institutions of higher education), popular culture, or on social media.

This Article makes three contributions. First, it spells out the contours of the Court's new religious liberty and religious discrimination jurisprudence by comparing and contrasting it to recent cases on racial discrimination in voting. Other scholars have previously argued that the Court has made it easier for plaintiffs in religious discrimination cases (at least religious discrimination cases involving conservative religious groups) to establish discrimination than for racial minorities to do so. But these pieces, by Jessica Clarke and Aziz Huq, have largely focused on claims of intentional discrimination. As the cases discussed in this Article show, the trend is the same for claims of unintentional discrimination. Particularly given the potentially far-ranging reach of a regime that imposed liability for unintentional discrimination, it is important to understand the contours of the new unintentional discrimination regime.

Second, unpacking the new frontier of unintentional discrimination claims destabilizes the boundary between intentional and unintentional discrimination claims. To date, antidiscrimination law has often been framed as a choice between intentional discrimination claims (where the government intentionally disadvantages a particular group) and disparate impact claims (where a law results in unfair or unequal burdens on different groups, but that was not the purpose or intent behind the law). This Article suggests that is a false choice and an unnecessary one; there can be different shades of discrimination that blur the boundaries between those two categories. The Court has not adopted a pure disparate impact standard in the new religious discrimination cases despite the similarities between the new standard for religious discrimination claims and disparate impact liability. But the Court has also disavowed the idea that the new standard in religious discrimination cases is an intentional discrimination standard.

Third, this Article presents a striking jurisprudential worldview that could plausibly explain the trajectory of the Court's religious discrimination cases. Based on the Court's opinions, individual justices' writings, as well as statements the justices have made outside of the Court, this Article suggests that the justices may be assessing antidiscrimination claims based on an intuition that conservative (often) Christian groups lack certain kinds of social capital or economic power, which makes them socially powerless, and that conservative Christian groups face rampant societal discrimination because their views no longer garner majority popular support, but once did.

Identifying this as a potential through line in the Court's cases helps to evaluate the cases, understand their potential implications, and assess the premises of the new antidiscrimination law. Intriguingly, the Court's new approach to religious liberty and religious discrimination claims reflects some of the key scholarly criticisms of the Court's free speech and equal protection doctrine, where the Court has, incorrectly in many scholars' views, steadfastly refused to consider things like social context or economic power in deciding whether to vary the scope of judicial review.

Yet the Court's new antidiscrimination theory for religious liberty claims is ultimately unjustified for reasons related both to the theory itself and to the Court's application of it. The Court mistakenly focuses on a very limited definition of social power and societal discrimination rather than incorporating these assessments into a broader and more robust inquiry into power and prejudice. Equally important, the Court's application of the theory is, at best, selective, and the selectivity uniformly favors Republican-favored causes.

Part of what makes this potential explanation for the Court's cases so striking is that one premise of the Court's jurisprudential outlook, the idea that conservative Christians are a group that faces considerable risks of discrimination and exclusion, shares important similarities with a narrative of victimization that Republican politicians and conservative commentators have occasionally embraced. The idea is that conservatives, who enjoy substantial political power and various electoral advantages, are a persecuted minority who face societal discrimination and exclusion, at least in certain circles. This idea has featured prominently in Republican politicians' critiques of social media platforms and corporate advocacy, and it has also appeared in conservative commentators' discussions of elite institutions, particularly schools. There is something odd about the idea that a group that controls one branch of the federal government, the Supreme Court, is a vulnerable group warranting judicial protection. The premise seems to be that, despite their political power, conservatives are victims so long as society does not enthusiastically embrace their views or allow their views to prevail.

Any doctrine premised on this worldview will have the effect of judicially reinforcing backlash against advances in equality and antidiscrimination law. Consider how some justices have suggested that when government actors, including courts, identify new forms of prohibited discrimination (such as discrimination against LGBTQ individuals), the very act of prohibiting discrimination leads to discrimination against the group who was engaged in the now-prohibited form of discrimination. The Court treats the group that opposed new antidiscrimination protections as a group that warrants heightened judicial protection because their views have fallen out of favor. But that heightened judicial protection, and the resulting heightened judicial scrutiny of new antidiscrimination protections, threatens to undo or at least undermine the new antidiscrimination protections.

The trends this Article identifies in the Court's treatment of religious discrimination claims under the Free Exercise Clause share two important parallels with trends that scholars have identified in the Court's treatment of racial discrimination claims under the Equal Protection Clause. One similarity is that the Court's equal protection cases have now made it easier for white plaintiffs to succeed on racial discrimination claims than for racial minorities to do so, just as the Court's free exercise cases have made it easier for conservative Christian groups to succeed on religious discrimination claims than for other, more minority religions to do so. In both contexts, the Court has shifted the law in ways that invert which groups benefit from the law's protections. And in both contexts, the group benefiting from those changes is not the group that has been historically disadvantaged or excluded from obtaining or exercising political power. The other parallel between the two lines of cases lies in the reasons why courts have insisted on affording greater protections to once politically dominant majorities. In both racial discrimination cases and religious discrimination cases, the Court has suggested that greater judicial protection may be warranted because a group no longer possesses the kind of power or capital it once did.

In this respect, both sets of cases reflect considerable sympathy and perhaps nostalgia for a not-so-distant past when white conservative Christians controlled the levers of political and social power to the exclusion of racial minorities and religious minorities. The Court views with skepticism departures from that past, including where legislatures enact statutes that seek to include racial minorities in formerly exclusionary institutions or where courts interpret constitutional guarantees to prohibit the exclusion or subordination of sexual minorities. Courts treat legislative and judicial efforts that address historical exclusions as reasons for courts to reinforce the historical exclusions: they view remedial policies or antidiscrimination measures as evidence that white people, or conservative Christian groups, are now groups in need of judicial protection from laws that seek to include other groups in society and democracy. Surfacing that through line in the Court's cases helps to evaluate them.

This Article proceeds in three Parts. Part I outlines political process theory, scholarly criticisms of it, and scholarly accounts of the modern Court's rejection of political process theory. Part II explains how the Court's doctrine, particularly on unintentional discrimination, has adopted the view that conservative religious groups are a disfavored minority who face prejudice and lack social power and that courts should accordingly more carefully scrutinize laws affecting those groups. Part III then analyzes what the Court's approach to new antidiscrimination claims gets right, but also why it is ultimately unjustified.

One caveat before proceeding: The Court has not used the same, more plaintiff-friendly standard for all religious discrimination claims. As other commentators have noted, the Court used the very demanding standard that is more akin to the standard applicable to racial discrimination in the challenge to President Trump's order excluding nationals from several Muslim majority countries. The Court required the plaintiffs to show that the order intentionally sought to disparage or disadvantage Muslims, not merely that it had the effect of doing so. That disparity, however, reinforces the descriptive claims in this Article, including those about the jurisprudential worldview that may be motivating the Court--namely, an apparent belief that white, Christian conservatives are now particularly at risk of discrimination in the United States. If that is a premise of the Court's new antidiscrimination doctrine, then that would explain why the Court does not view laws that burden less familiar, non-Christian religions with similar skepticism. If the Court believes that conservative Christians face the greatest risk of discrimination in particular social circles, then laws that burden those religious groups, but not others, would receive heightened scrutiny. And that fairly describes the set of cases where the Court has intervened.

[. . .]

The developments in the Free Exercise Clause parallel developments in the Equal Protection Clause over the last several decades. In particular, Reva Siegel and Russell Robinson, among others, have argued that the Court's embrace of the anticlassification theory for the Equal Protection Clause has made it easier for white plaintiffs to win racial discrimination claims than for racial minorities to do so. The shifts in the Court's free exercise jurisprudence, and the theory motivating those shifts, this Article has suggested, will make it easier for conservative Christian groups to succeed on free exercise claims than for other minority religions to do so.

One key premise of the Court's apparent theory is that (conservative, Christian) religious believers face widespread discrimination--discrimination that may be more prevalent than racial discrimination, such that it is appropriate to presume that a policy's discriminatory effects were the result of discrimination in cases involving religion but not in cases involving race.

That premise and the various doctrinal moves that implement it can be understood by way of a contrast to political process theory. Political process theory called for more aggressive forms of judicial review where legislation negatively affected politically powerless groups of discrete and insular minorities who faced prejudice. The Court seems to be of the view that courts should more carefully review legislation that negatively affects groups that are socially powerless and that social conservatives are one such group. The Court may also be of the view that social conservatives face widespread societal prejudice and should be afforded judicial solicitude for that reason as well. This new orientation toward religious discrimination claims seems to maintain that a group can be politically powerful--not only winning elections but having its policy preferences enacted in the political process, including the courts--but still be powerless because they lack certain kinds of social capital and face certain kinds of societal prejudice.

While some parts of the Court's new approach to religious discrimination claims have things to recommend them, the current shape and application of the theory is problematic and ultimately unjustified. The Court may be right to consider social context, economic power, and related facts in assessing a group's power. But it is wrong to ignore the importance of political power and the rules that allocate it, and it is wrong to think that the Court should be the institution to recalibrate society and redistribute power to groups that it perceives as socially powerless. The Court has also created a jurisprudence of conservative grievance and backlash that threatens to undo new egalitarian, antidiscrimination protections.

Appreciating how the Court has applied its new theory of religious discrimination, as well as how the Court's new theory relates to political process theory, invites questions about whether the problem is the theories themselves or the Court's application of them. That is, is the Court's new account of discrimination theoretically attractive but the Court's application of it just mistaken? Separating a theory from its application is a difficult task. There are, however, at least two reasons to doubt whether the Court's new theory of discrimination belongs in free exercise jurisprudence. One is that the only Supreme Court cases to ever apply this theory suggest it is not judicially administrable. Courts are loosely equating activities that are not comparable, raising questions about whether they are competent to make such assessments. The second problem is that, as Section II.A explained, the theory itself seems to invite courts to assess the relative importance of religious exercise compared to other activities.

One can ask a similar question about political process theory, or at least the prejudice prong of political process theory. If the Court's free exercise cases are rooted in the idea that courts should afford heightened judicial solicitude to groups that are powerless because they face prejudice and bias, is that an indictment of the theory itself, or is the problem the Court's application of the theory? The Court's free exercise cases provide some additional fodder for critics of Ely's prejudice prong who have expressed concern that the theory would result in courts picking and choosing between groups in unprincipled ways and ultimately favoring their preferred causes and groups. Whether that is enough to abandon the theory or even just the prejudice prong, however, is beyond the scope of this Article.

Professor of Law, University of Michigan Law School.