Supreme Court

If Section 2 Of The Voting Rights Act Included The Word 'Religion' There Would Be No Question The Roberts Court Would Uphold It

Because Section 2’s disparate-impact liability only concerns race discrimination, it is widely expected that the Roberts Court will strike it down. 

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The U.S. Supreme Court (Photo by David Lat).

Last week, the Supreme Court heard oral argument in a case that will determine the fate of Section 2 of the Voting Rights Act. Section 2 bars states from enforcing voting laws that can be demonstrated, under a “totality of the circumstances” standard, to disproportionately impact citizens depending on their race. There are those, including myself, who expect the Roberts Court to either strike down Section 2 or strip it of all enforcement teeth so as to render it ineffectual. I am convinced Section 2 is already dead for a couple of reasons. First, the conservative majority Roberts Court has already made clear that it views the Voting Rights Act as outdated, and the court has only become more conservative since. Second, and perhaps more importantly, legal conservatives are extremely hostile to disparate-impact liability within race discrimination claims and Section 2 is structured entirely around a disparate impact standard regarding racial discrimination only.

Over the past 60-plus years of conservative majority control of the judiciary, time and time again a disparate-impact liability standard within race discrimination (equal protection) claims has been rejected. No matter how glaring the racial disparity is, or how serious the consequences of the disparity might be, conservative justices will steadfastly refuse to uphold a race discrimination claim based on proof of differential treatment alone. Take McCleskey v. Kemp for example. Here, a Black man on death row provided statistical proof — which the court accepted as fact — of extraordinary racial disparity in the application of the death penalty in his county. The disparate impact was so glaring that the court acknowledged that “[t]aken to its logical conclusion” the race discrimination claim “throws into serious question the principles that underlie our criminal justice system.” But guess what happened? None of the overwhelming evidence of differential treatment based on race mattered and the claim was tossed out of court.

The good news is the racial disparity has lessened since McCleskey. But as Radley Balko demonstrates with overwhelming evidence, it remains painfully and outrageously obvious that the criminal “justice” system is institutionally racist regardless of the intentions of the people who work within the system. A fact of American life which should surprise no one. Per Balko:

When you consider that much of the criminal justice system was built, honed and firmly established during the Jim Crow era — an era almost everyone, conservatives included, will concede rife with racism — this is pretty intuitive. The modern criminal justice system helped preserve racial order — it kept black people in their place. For much of the early 20th century, in some parts of the country, that was its primary function. That it might retain some of those proclivities today shouldn’t be all that surprising.

Suffice it to say, that with this legal history of disparate racial impact having no influence with conservatives and with this ultra-conservative Supreme Court, any racial claim built on evidence of differential treatment only has no real chance of succeeding. In fact, the last case I found where evidence of disparate impact alone was enough to sustain a racial discrimination claim, every conservative dissented with only Justice Kennedy joining the four liberals for a majority. The Court’s makeup is simply very different today.

What is extraordinary about the Court’s hard shift to the right, however, is the growing relevancy of disparate-impact analysis. Not within racial discrimination claims of course. But in First Amendment religious discrimination (free exercise) cases only, proof of differential treatment alone provides a sure guarantee of success with conservatives. In fact, all that is now needed to toss out a state’s occupancy limits on indoor church services during this deadly pandemic is proof that church services are being treated differently than dissimilar activities like commercial retail. Even in cases where indoor religious gatherings are being treated more favorably as compared to other similar situated services (like indoor movie theaters or sporting events), the religious discrimination claim prevailed based on nothing but a claim that churches were being treated differently than dissimilar activities.

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As I have written about before, state epidemiologists have explained at length why church services present a similar risk to indoor movie theaters and sporting events and, along with these other similar activities, why indoor church services are being treated differently than dissimilar activities like commercial retail. But, again, none of the medical reasoning matters to this ultra-conservative Supreme Court. All that does matter is simple proof of disparate impact, no matter how medically justified the reason.

This is where you might be asking what, if anything, justifies putting such a tougher burden on proving race discrimination claims as opposed to religious claims? The only explanation that is certain is the law has nothing to do with it.

Nowhere in the text of the Constitution is there support for the premise that a 14th Amendment equal protection racial discrimination claim should require more preconditions and suffer under a tougher burden of proof than a First Amendment free exercise religious discrimination claim. All the Constitution’s text says is that government is prohibited from discriminating against citizens because of either or both reasons. If there was a Constitutional preference for a particular claim (FWIW, I don’t think there is) it could only be for race claims. As the former administration acknowledged recently at oral argument in a religious case “race is unique in this country’s constitutional history, and eradicating that type of racial discrimination (sic) presents a particularly unique and compelling interest.” To this day the worst war our country ever fought was over race discrimination, and as Balko demonstrates, it remains one of our biggest problems today.

It just so happens, however, that despite having no legal justification, conservative politics disfavors racial grievance but favors the premise that religion is under social attack. Once you think about it from a strictly political view, the Roberts Court applying wildly different standards for racial discrimination claims as opposed to religious claims makes complete sense. I just find it morally gross and a disgrace to our system of law that all it would take to ensure this Supreme Court would uphold Section 2 of the Voting Rights Act, is to insert the word “religion” into it.

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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