How the Court Inverted Constitutional Protections Against Discrimination

What was once constitutionally prohibited is now constitutionally required.

Illustration of a paper-people chain in front of the Supreme Court, with one person ripped off
Shutterstock / The Atlantic

We are living through a time of constitutional inversion. When it comes to the religion clauses in the First Amendment and the equal-protection guarantee in the Fourteenth Amendment, what was once constitutionally prohibited is now constitutionally required. Each of these areas has a different constituency, but they also share much in common. And, in both areas, the Supreme Court has transformed constitutional provisions for fighting racial segregation into instruments that preserve it.

Consider where the law stood in the 1970s. On the religion-clause front, in 1971, the Supreme Court decided Lemon v. Kurtzman, which invalidated two state statutes that reimbursed private religious schools for expenses that included teachers’ salaries and textbooks related to secular subjects. The state, the Court believed, could not send funds to religious institutions for these purposes. Likewise, in two subsequent cases, decided in 1975 and 1977, the Supreme Court invalidated similar portions of state-aid programs to religious schools. The Court ruled that using taxpayer money to fund field trips, instructional materials, or equipment for religious schools violated the establishment clause

On the equal-protection front, many prominent judges in the 1970s, including Justices William J. Brennan and Thurgood Marshall, believed that the equal-protection clause prohibited the government from enacting facially neutral laws (those that did not specifically mention race) when they resulted in different burdens on different racial groups, though many other judges and scholars disagreed. Brennan and Marshall maintained that the equal-protection clause prohibited the government from enacting policies that had adverse effects on racial minorities. Several federal trial courts and courts of appeals, including the United States Court of Appeals for the District of Columbia Circuit, did as well.

Now consider where we are today. On the religion-clause front, at the end of the previous Supreme Court term, Espinoza v. Montana held the inverse of its earlier position: not that states couldn’t support religion, but that a state could not refuse to provide public-funding benefits to religious schools if it were providing funding to other, nonreligious private schools. The chief justice wrote for a majority that “a State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” The Court’s reasoning focused on the religious status of the schools; it was not concerned that some of the government funds could be put toward religious uses. Indeed, several of the conservative justices wrote separately to say that they believed the religion clauses require the government to provide money to religious institutions for religious purposes, such as training ministers. Thus, whereas previously the Court had said the religion clauses prevent the government from providing financial support to religious schools for some purposes, now the Court says the clauses require governmental support for private religious schools in certain circumstances.

This term, the Court will hear another religion-clause case that will likely result in even more government financial support for religious institutions, including when the institutions engage in discrimination. Fulton v. City of Philadelphia involves a challenge to Philadelphia’s contracting program for foster-care agencies. In order to receive a government contract to provide foster-care services, agencies must agree not to discriminate on the basis of race or sexual orientation. Some religious agencies challenged the program. They do not want to place children with same-sex families, and argue that the policy discriminates against the agencies for their religious beliefs. If their challenge succeeds, it will mean not only that states cannot deny generally available financial benefits to religious institutions, but also that states cannot require as a condition of receiving government funds that an entity comply with nondiscrimination obligations.

On the equal-protection-clause front, the question is now whether the Constitution requires the government to pursue laws or policies that result in disproportionate disadvantages on underrepresented minorities. The Supreme Court first addressed this new question in 2008 in a case called Ricci v. DeStefano. A federal statute, Title VII of the Civil Rights Act, prohibits employers from using policies or practices that have a disproportionately adverse effect on minorities and are not sufficiently related to job qualifications. For example, a real-estate brokerage could not try to hire people whose ancestors owned land before the Civil War; that policy would disadvantage Black Americans and has no bearing on employees’ job performance. In the Ricci case, the City of New Haven was considering whether to use an examination to promote firefighters. But the city decided not to when the first round of test results showed that white candidates outperformed minority candidates.

A group of white firefighters sued the city for racial discrimination. They alleged that the city’s decision not to use test results with disproportionately adverse effects on Black applicants constituted unlawful discrimination on the basis of race—against white applicants. The Court agreed, finding that the city violated Title VII’s prohibition on racial discrimination. The Court also suggested that taking into account whether laws or policies result in disproportionate disadvantages on underrepresented minorities amounted to discrimination in violation of the equal-protection clause. Justice Antonin Scalia wrote in a concurring opinion that the statute forbidding employment practices with adverse effects on minorities requires “employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes.”

The religion clauses and the equal-protection clause have thus proceeded along parallel tracks. The Court has gone from thinking that the Constitution prohibits certain actions (government funding of religious schools or institutions, or government practices that are selectively disadvantageous to racial minorities) to thinking that the Constitution now requires those very same actions.

But perhaps most interesting is not that these parallel tracks exist, but why they do. And the answer comes down to not some abstract development in legal theory, but a more specific story that happens to be in the forefront of the country’s mind today—racial integration and racial equality. The trajectory of the religion clauses and the equal-protection clause share a driving force: opposition to Brown v. Board of Education and a desire to limit the reach of that decision.

Although the religion clauses today primarily arise in cases involving discrimination against LGBTQ individuals, historically they came up in cases involving racial integration. A desire for racial integration, and the promise of integrated schools, is part of what drove litigants to challenge government funding for private religious schools and courts to invalidate such programs. Similarly, a desire for racial equality also drove challenges to government policies that did not explicitly mention race, but nonetheless had the pernicious effects of disproportionately disadvantaging Black Americans and preserving segregated schools.

But it was white Americans’ opposition to this progress that has now inverted the interpretation of these clauses of the Constitution. It was this opposition that fueled the social movements that propelled to the White House presidents such as Richard Nixon and Ronald Reagan. As the New York Times journalist Nikole Hannah-Jones has argued, “A hallmark of Richard Nixon’s ‘Southern strategy’ during his presidential campaigns” was that it “relied on unifying white anger about fair housing and school integration to build a successful coalition of white Southerners and white ethnic Northerners.” Reagan’s successful campaign against one particular form of integration (school busing) is another example of this. And the judicial nominees of these and other Republican administrations shifted the equal-protection and religion clauses away from being weapons against segregation to tools to preserve it.

This story of how these clauses were turned into shields against integration begins with Brown v. Board of Education, which invalidated the “separate but equal” system of segregated schools. The Court held that segregated public schools violated the Fourteenth Amendment’s guarantee of equal protection. The schools in Brown were segregated by law in the sense that there were laws on the books that assigned white students to one set of schools and Black students to another. In the aftermath of the decision, the question became: What other kinds of racially segregated public schools might violate the equal-protection guarantee? Many laws or policies that did not explicitly mention race nonetheless resulted in schools that were primarily white and primarily Black. For example, given the prevalence of residential segregation in the U.S., assigning students to neighborhood schools often resulted in, and still results in, racially segregated schools.

After Brown, some school districts adopted so-called school-choice plans that allowed parents to pick which schools their children attended. In the 1960s, the Court held that a school-choice plan was not legal if it resulted in schools that were primarily white or Black. Many other school-assignment plans, such as policies that assign students to schools in their neighborhood, also resulted in similarly segregated schools.

In 1976, in Washington v. Davis, the Supreme Court concluded that the equal-protection clause allowed the government to adopt facially neutral policies that produce adverse effects on the basis of race. (The decision involved a challenge to the District of Columbia’s hiring and promotion tests for police officers.) As a result of the decision, schools were no longer required to affirmatively and proactively integrate. Instead, the schools could do nothing to address persistent segregation, and they could even take some actions to enable it. The decision ensured that facially neutral school-assignment policies that resulted in segregated schools were largely immune from judicial scrutiny. It represented, in the words of the University of Chicago law professor David Strauss, “the taming of Brown”—a way of limiting the decision so that it did not actually require integrated schools.

The shift in the Court’s religion-clause cases accomplished much the same thing: It eliminated one method of achieving racially integrated schools. One of the ways that white parents avoided sending their children to integrated public schools was to opt to send their children to segregated private schools. Some of these schools were known as “segregation academies.” As the University of Virginia law professors John Jeffries and Jim Ryan noted in their history of the establishment clause, “by the late 1960s, both the rural and the urban South faced imminent desegregation. The result was a dramatic explosion in the number of private schools and a turn to church-based education.” Jeffries and Ryan also noted that the Court’s equal-protection-clause cases requiring integration contributed to the rise of private religious education: “The demise of freedom-of-choice … triggered a massive exodus of whites from public schools and a scramble to find private alternatives.” (The majority in Espinoza cited Jeffries and Ryan’s article as a source for their interpretation of the religion clauses, so the justices are aware of this history.)

To challenge government support for private religious schools that discriminated on the basis of race, civil-rights advocates relied not just on the equal-protection clause, but also on the religion clauses, and the establishment clause in particular, because the government was supporting particular religions and religious instruction. In the obituary for Alton Lemon, the lead plaintiff in the Court’s foundational establishment-clause case on government support for religious schools, Lemon v. Kurtzman, The New York Times noted that the suit challenging government aid to religious schools relied on both the equal-protection and the establishment clauses. “The case was decided against the backdrop of resistance to the desegregation of public schools,” the obituary explained. The establishment clause, like the equal-protection clause, was one of the tools that civil-rights advocates used to counter that resistance—to try to stop the government from supporting private religious schools whose discriminatory practices undermined the development of racially integrated public schools.

Private religious schools do not have to discriminate on the basis of race. But at the time, quite a number of them did. And they continued to for some time, at least through the 1980s.

Today, racial discrimination is no longer the kind of discrimination that the religion clauses address. Instead, the modern religion-clause cases tend to involve discrimination against LGBTQ individuals, women, or women’s health care, as in the cases challenging the requirements that employers offer health-insurance coverage for contraception.

Fulton itself underscores how the religion clauses have become a shield against states’ efforts to prohibit discrimination—in this case against LGBTQ couples. In Philadelphia, the government has conditioned a benefit, a government contract, on contractors’ agreement not to discriminate against certain groups. The government is not imposing an antidiscrimination obligation on everyone and threatening to send individuals to jail if they do not comply; it is instead conditioning the receipt of a benefit on an entity’s acceptance of a generally applicable nondiscrimination provision that does not single out religious institutions. If the Court accepts the challengers’ argument, then the Court will be further weaponizing the religion clauses to serve as shields against state antidiscrimination efforts.

The Court has justified the changes in the law on the basis of the Court’s assessment of the history of the constitutional clauses and the meaning of the text. But it is no coincidence that those interpretations happened to line up with the views of the social movements that propelled to victory the presidents who nominated the Supreme Court justices. Those movements have had only greater victories since—one just this week—and they may well reap more victories this term.