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Joy Milligan

Excerpted from: Joy Milligan, Religion and Race: on Duality and Entrenchment, 87 New York University Law Review 393 (May, 2012) (345 Footnotes Omitted)


Whether government is required, or even permitted, to take race-conscious action toward particular goals is a raging and long-running debate in the constitutional law of race. Proponents of colorblindness argue that race is never a legitimate criterion in state action. Others insist that government decision makers must sometimes consider race and racial inequality in formulating their policies. Religion doctrine has seen a parallel, deeply divisive debate over the necessity and legitimacy of religion-conscious action by government. Over the course of several decades, the position opposing race-and religion-conscious action--what I call the ideal of formal neutrality --has increasingly dominated both areas of constitutional law. At times, it has seemed that government consideration of race and religion would be deemed illegitimate under all circumstances, rather than seen as potential evidence of government's deeply rooted constitutional concerns.

The formal neutrality model has evolved in two distinct phases. Initially, race and religion doctrine converged on the position that the Fourteenth Amendment's Equal Protection Clause and the First Amendment's religion clauses require only a neutral governmental process, and do not regulate the effects of government action. According to this position, so long as government does not rely on race and religion in its decision making, the Constitution is satisfied. The Constitution does not require government to avoid disproportionately benefiting or burdening specific religious or racial groups.

Later, the idea of formal neutrality expanded. Race and religion doctrine took different paths at that point. After the Supreme Court indicated that government indifference to racial and religious concerns was sufficient to satisfy the respective constitutional mandates, the Court gradually began to adopt a stronger version of neutrality: the idea that government neutrality was affirmatively required. This would presumptively bar most race- and religion-conscious action. In the religion context, the Court suggested that formal neutrality would dissipate what it understood as an inherent tension between robust readings of the Free Exercise Clause and the Establishment Clause. In the race context, the Court expressly recognized that the tension was between the procedural ideal of formal neutrality and alternative, substantive interpretations of equal protection. In both settings, other government actors resisted. These parties insisted that goals like racial integration or separation of church and state were compelling, grounded in the Constitution itself, and required race- and religion-based action. Conflict between substantive aims and an ideal of formal neutrality--that is, government blindness toward race and religion--grew acute.

Ultimately, the Court resolved this conflict in different ways for religion and race. In four important religion and race cases over the last decade, the Court considered how far a formal neutrality rule limits government in affirmatively pursuing concerns related to religion or race. Two distinct answers emerged.

In the religion cases, Locke v. Davey and Cutter v. Wilkinson, the Court indicated that the government retains significant leeway to promote religious liberty or separation of church and state, well beyond what the Court's constitutional interpretation would affirmatively require. The Court calls this leeway the play in the joints of the religion clauses. The play in the joints represents the space in which government may choose to protect the free exercise of religion without thereby violating the Establishment Clause or may separate the state from religion without thereby violating the Free Exercise Clause. Play in the joints demonstrates the Court's lingering respect for government's voluntary, religion-conscious pursuit of these constitutional concerns--even where the resulting actions arguably discriminate in favor of or against religion.

The Court has not shown similar flexibility for race. In Parents Involved v. Seattle School District No. 1 and Ricci v. DeStefano, the Court indicated that colorblindness norms impose much stricter limits on the government's pursuit of racial integration and racial equality. The Court's reasoning suggested that it does not view these goals as affirmatively grounded in the Constitution in the same way that it does government's concerns about free exercise or establishment.

In this Article, I probe the convergence and divergence of religion and race jurisprudence over time, as each field has moved further toward formal neutrality. I argue that, even as the Court has shaped religion and race doctrine in similar ways, the Court has missed the true parallels between the two constitutional mandates. While the religion clauses and the Equal Protection Clause protect distinct substantive concerns, they have a deeper congruence and share an important structural dimension. Like the religion clauses, the Equal Protection Clause is best understood to have two aspects, both directed toward majority-minority balances of power: One protects minority rights and the other checks majority power over the state. Equal protection not only guards against invidious discrimination but also checks majorities' ability to use state institutions to entrench their own power. Formal neutrality collapses both halves of this duality, substituting a narrow right to procedural impartiality in place of substantive and structural protections.

To date, no other scholar has offered a sustained, comprehensive examination of how religion and race doctrine have converged and diverged over the last half-century, nor has anyone systematically traced the parallel paths of formal neutrality ideas in each of the two areas. Equal protection and religion clause scholars have largely emphasized formal neutrality's threat to the protection of substantive minority rights under either religion or race doctrine, rather than identifying the parallel risk formal neutrality poses to the structural safeguards within both religion and race doctrine. This Article addresses those gaps in the literature and breaks fresh theoretical ground by arguing for a new understanding of the dualistic nature of both the religion clauses and the Equal Protection Clause.

The Article is structured around three main arguments. First, in Part I, I argue that despite their textual differences, the religion clauses and the Equal Protection Clause are functionally parallel. Both must respond to two related problems: the need to provide substantive protections for minorities and the structural need to protect the state from overwhelming majority power. Neither doctrinal area can be reduced to a single mandate. While the text of the religion clauses provides a clearer basis for this dualism than does the Equal Protection Clause, the simultaneous need to protect minorities and check majorities is equally present in the context of race. Thus, the Equal Protection Clause does not just protect vulnerable groups against subordination; it also protects the state--and particularly public institutions and resources--from majority capture.

I differ from others in placing public institutions and public resources at the heart of the equal protection story. The modern state's expansive institutions play a foundational role both in shaping democratic governance and in reproducing social hierarchy. Without a structural view, it is difficult to appreciate the broad role of the state in entrenching the power of majority groups. In this respect, I build on the theory of entrenchment in the work of John Hart Ely and more recent law of politics scholars, and concur with their understanding that political institutions should be safeguarded from majority capture. However, I broaden these ideas of capture and entrenchment to focus on the state in all of its allocative aspects, rather than simply focusing on how it directly distributes political power. I emphasize that this type of broad entrenchment need not occur through intentional discrimination. Part I elaborates this argument and shows that the Warren Court and early Burger Court's religion and race jurisprudence served both substantive and structural goals.

Second, in Parts II and III, I trace the parallel path taken by formal neutrality toward reducing religion and race doctrine to procedural mandates. I argue that in the fields of religion and race, formal neutrality arose in response to calls for judicial restraint, impartiality, and doctrinal coherence, but the model failed to deliver on its promises. Instead of limiting judicial power, formal neutrality expanded it. Instead of reconciling purported internal tensions in the substantive aims of religion and race doctrine, formal neutrality collapsed them into a single, simplistic rule of procedural impartiality for all branches of government. In doing so, formal neutrality imposed ideals that were meant to govern judicial decision making on democratically elected actors and their delegates. Enforcement of such procedural ideals is not impartial toward state ends; instead it tends to systematically preserve existing balances of political power.

Third, in Part IV, I argue that the Court should retool its approach in both areas and recognize that democratic actors deserve space in which to pursue their constitutional concerns about religion and race. This holds true whether those concerns include the substantive goals of promoting religious liberty or racial equality, or the structural ones of preventing direct state support of religion or seeking actual racial integration of public institutions. Making the shift would not require the Court to set aside all concerns underlying its formal neutrality approach but rather to recognize that other government actors may legitimately interpret these constitutional mandates in a dualistic, countermajoritarian manner. The Court could then focus its scrutiny on the sincerity and reasonableness with which those governments have pursued their constitutional goals. Thus, I offer a pragmatic compromise between substantive goals and formal neutrality: The Court should offer the same play in the joints for race as it does for religion, allowing other government actors room to enforce the substantive and structural countermajoritarian concerns underlying these constitutional provisions.