MOST FAVORED RACIAL HIERARCHY: THE EVER-EVOLVING WAYS OF THE SUPREME COURT'S SUPERORDINATION OF WHITENESS.

• Author: Simson, David

TABLE OF CONTENTS INTRODUCTION I. AGGRESSIVELY PROTECTING EQUALITY IN THE CONTEXT OF RELIGION A. The Rise of MFN B. Disaggregating Equality Questions: Intercategory Versus Intracategory Equality and MFN II. ANEMIC EQUALITY PROTECTIONS IN THE CONTEXT OF RACE: EXPOSING RACIAL SUPERORDINATION THROUGH CROSS-CONTEXTUAL ANALYSIS A. Applying MFN to Expose the Flaws of Current Affirmative Action Doctrine B. Race and Religion Are Sufficiently Comparable C. The Superordination of Whiteness CONCLUSION INTRODUCTION

This Article takes as its starting point that America's constitutional commitment to racial equality currently appears to be facing a "Second Redemption" (1)--that is, a backlash reaction to progress in racial equality similar (though not identical) to that which developed after the Civil War and Reconstruction. (2) As such, our current moment illustrates the claim long made by Critical Race Theory (CRT) scholars that the trajectory of America's racial equality progress is better described as a process of alternating cycles of reform and retrenchment, rather than as a more romantic story of continuous linear progress. (3) One reason that retrenchment can continue to repeat itself is that the mechanisms of and the intellectual justifications for retrenchment continue to change and evolve in a process of "preservation-through-transformation." (4) In this process, the current justification and means for the continued subordination of historically subordinated groups are never quite the same as the previous ones and, in fact, often masquerade as egalitarian progress, (5) permitting a kind of "plausible deniability" about the fact that longstanding social hierarchies persist and continue to be nurtured. (6)

One major task for civil rights lawyering and scholarship is to continue to expose and challenge the evolving ways in which the most basic civil rights goals of equality, liberty, and justice for all are being undermined, to develop arguments for how those goals could be more effectively pursued, and to hold accountable those leaders and institutions who could change the status quo for the better but fail to do so. (7) This is simultaneously an "old" and enduring vision of civil rights lawyering, and yet it must continuously revitalize itself as a "new" vision that is both attentive to preservation-through-transformation and decisive in criticizing and responding to its ever-evolving forms.

This Article aims to contribute to this task through a critical comparative analysis of both the recent history and likely future trajectory of the Supreme Court's constitutional jurisprudence in matters of race and religion. To date, constitutional law scholarship has only infrequently engaged in sustained comparative analysis of these two central areas of constitutional law. (8) This Article argues that this oversight is problematic. It leaves comparatively unexplored important dimensions, and a new chapter, of the longstanding racial project (9) through which constitutional law and the Supreme Court have contributed to the perpetuation of a basic social system structured by white supremacy. (10) It also leaves comparatively unexplored potential ways of challenging this system and mobilizing against it.

With respect to new insights, a critical comparative analysis of race and religion jurisprudence uncovers new aspects of the ways in which the Court engages in what Reggie Oh has recently called the "racial superordination" of whiteness in the American racial hierarchy. (11) As Oh suggests, white supremacy is maintained not only through the subordination of non-white groups (though it is certainly also maintained in this way) but also through the superordination of whiteness--meaning practices that reinforce the perceived superior status of white Americans and whiteness in American society and that help consolidate white control over political power and material resources. (12) One way in which such superordination can proceed is by "prioritizing the interests of whites" in structuring legal doctrine. (13) Applying this idea to race and religion jurisprudence, superordination of whiteness can occur internal to race jurisprudence, (14) internal to religion jurisprudence, (15) and across race and religion jurisprudence. This Article focuses predominantly on the last, cross-contextual dimension of superordination, which has so far received the least attention.

As Parts I and II describe, a critical comparative analysis of race and religion jurisprudence--what Russell Robinson has called "doctrinal intersectionality" (16)--shows that the Court is increasingly widening the gap between conceptions of, and levels of protection provided for, equality in the contexts of race and religion in ways that prioritize the interests of whiteness and set those interests as the normative baseline in both areas of constitutional law. This widening equality gap remains invisible if race and religion jurisprudence are analyzed, as they frequently are, in silos. But as Part II explores, it becomes visible through a comparison of the Court's recent trajectory in the Free Exercise Clause context, where the Court has increasingly moved toward an aggressive and religion-conscious "most favored nation" equality theory, (17) with its trajectory in the equal protection context, where the Court's continued march toward mandating colorblindness is arguably moving toward something akin to a "least favored nation" equality theory for race and race consciousness. Plausible and persuasive arguments can be made that the most favored nation approach should also be applied to race. Doing so would provide more doctrinal space for racial equality-enhancing government programs and call into question deeply entrenched aspects of the Court's current affirmative action jurisprudence. The Court's refusal to even hint at the possibility of such an approach points to a racial project of superordinating the interests of white Americans to be constitutionally protected from race-conscious interference with their dominant position in the racial hierarchy over the application of consistent constitutional principles. This suspicion is further supported by the Court's selective application of the most favored nation theory even in the context of religion in ways that predominantly benefit the interests of white Americans.

Uncovering this cross-contextual superordination of whiteness shows that the Court's cramped racial equality jurisprudence is not merely an iteration of a generally cramped vision of constitutional equality protections--it is racially specific to the benefit of whites. The Court is innovating and strengthening constitutional equality protections for the religious (at least where those protections cover the interests of most religious white Americans). But it simultaneously refuses to extend those innovations to the race context where they would largely benefit communities of color--indeed, in this context, the Court is moving even further away from the implications of its equality innovations elsewhere. This is a racial project and ought to be discussed, analyzed, and criticized as such. (18)

As I discuss in a brief conclusion, this point, in turn, connects the Article's doctrinal analysis to what it suggests about possible ways of mobilizing against this racial project. The Court's march toward a "colorblindness" approach to racial equality has been criticized extensively and persuasively on its own terms since at least the mid-1980s. (19) And yet the Court seems poised to continue and finish its march, (20) suggesting that the members of the Court's conservative majority are not willing to be persuaded (intellectually or ideologically) by those critiques in isolation. They have seemingly shown somewhat greater sensitivity to allegations that their decisions are ideologically or politically motivated. (21) They have also shown greater willingness to explicitly take account of scholarship and activism advocating for greater equality protections in the field of law and religion. Could cross-contextual alliances of scholars and activists develop an anti-racist project (22) that calls out the Court's equality inconsistencies and their negative racial hierarchy implications and demands harmonization in line with robust equality protections for all groups for whom the Constitution shows special solicitude? Would such a project make a difference? I don't want to be naive about the likelihood of such a project or its prospects of success. But it seems worth attempting as one aspect of a determined challenge to the dangers of a Second Redemption.

1. AGGRESSIVELY PROTECTING EQUALITY IN THE CONTEXT OF RELIGION

   1. The Rise of MFN

      One of the most significant and widely discussed decisions of the Supreme Court regarding the scope of constitutional protections for religion was the 1990 decision in Employment Division v. Smith. (23) Smith produced a significant departure from prevailing free exercise doctrine by changing the basic nature of the constitutional free exercise protections that courts would enforce (24) from a substantive liberty right "to a mere equality right." (25) Where previously the Court's jurisprudence had required the government to justify any imposition of substantial burdens on constitutionally protected religious exercise under strict scrutiny, (26) the Court ruled in Smith that the Free Exercise Clause does not protect against burdens on religious exercise imposed by laws that are neutral and "generally applicable." (27) In other words, when legislation does not impose burdens unequally on the basis of religion or religious exercise, the First Amendment does not demand heightened scrutiny.

      While there have been calls for the repudiation of Smith essentially since the day it was decided, both by members of the Court (28) and scholars, (29) because of its limitations on the affirmative protection of religious liberty, what is of most...