DISPARATE DISCRIMINATION.

• Author: Litman, Leah M.

This Article explains and analyzes a recent trend in the Supreme Court's cases regarding unintentional discrimination, where the argument is that a law has the effect of producing a disadvantage on members of a particular group. In religious discrimination cases, the Court has held that a law is presumptively unconstitutional if the law results in a comparable secular activity being treated more favorably than religious activity. Yet in racial discrimination cases, the Court has said the mere fact that a law more severely disadvantages racial minorities as a group does not suffice to establish unlawful discrimination.

The two tracks for unintentional discrimination claims can be understood through the lens of political process theory. One part of political process theory maintains that courts should be skeptical of laws that negatively affect discrete and insular minorities who may be politically powerless and face prejudice. One reason the Court more carefully scrutinizes laws that burden conservative, (often) Christian religious groups may be that the Court views those groups as socially powerless because their views no longer command majority support and because their views are not treated with the respect the Court thinks they deserve. And the Court's decisions have the effect of redistributing power to or reinforcing power in the groups the Court believes to be socially powerless.

Identifying the jurisprudential worldview that may plausibly drive these trends helps to identify the potential implications and assess the merits of the new doctrinal approach that the Court has taken in (some) antidiscrimination cases. The Court's new approach to religious discrimination claims has some virtues; in particular, the Court is probably right to consider facts from the private sphere, such as a group's economic or social power, in deciding the appropriate scope of judicial review. But the selectivity with which the Court has applied this approach, as well as the Court's odd assessments of various groups' power, has resulted in a problematic jurisprudence of conservative victimization that judicially protects backlash against advances in equality and antidiscrimination law.

TABLE OF CONTENTS INTRODUCTION I. PROCESS THEORY OF JUDICIAL REVIEW A. Political Process Theory: Origins B. Challenges 1. Political Process Theory Challenges 2. Definition of Discrimination Challenge II. Two TRACKS OF DISCRIMINATION CLAIMS A. Defining Discrimination 1. New Religion Cases 20 a. Discriminatory Effects in the Cases: (Lack of) Burdens on Comparable Secular Activity b. Discriminatory Effects in the Theories: Most Favored Nation, Single Secular Exemptions, and Equal Value c. Discretion and Exemptions 2. Race Discrimination Cases a. Voting Rights Act b. Shadow Docket Coronavirus Cases B. Identifying Discrimination 1. Scrutiny of Government Justifications 2. Relevance of Private Action III. A NEW THEORY A. Theory: Social Power, Prejudice, and Grievance 1. New Powerlessness and Prejudice 2. Redistributing Social Power B. Evaluation 1. Partial Defense 2. Critique and Rejection a. Theory and Concept b. Application c. Selectivity, Grievance, and Backlash CONCLUSION INTRODUCTION

There are currently two tracks for unintentional discrimination claims. (1) 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. (2) (The Court had previously held such laws do not violate the Constitution.) (3) 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. (4) 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. (5)

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.) (6) 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, (7) and the second were voting rights challenges to restrictions that allegedly increased voters' risk of exposure to the virus. (8)

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." (9) 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. (10) 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. (11) But if outdoor camping and indoor at-home gatherings are comparable for purposes of COVID19 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. (12) 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. (13)

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. (14) 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. (15) 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. (16) 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. (17) 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, somewhat-comparable white employee or a single, somewhat-comparable white tenant was treated better than a racial minority (even if unintentionally). (18)

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...