Most Favored Racial Hierarchy: The Ever-Evolving Ways of the Supreme Court’s Superordination of Whiteness

David Simson* June, 2022

This Article engages in a critical comparative analysis of the recent history and likely future trajectory of the Supreme Court’s constitutional jurisprudence in matters of race and religion to uncover new aspects of the racial project that Reggie Oh has recently called the “racial superordination” of whiteness—the reinforcing of the superior status of whites in American society by, among other things, prioritizing their interests in structuring constitutional doctrine. This analysis 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. While the Court has increasingly moved toward an aggressive and religion-conscious “most favored nation” equality theory in the Free Exercise Clause context, its continued march toward mandating colorblindness is arguably moving toward something akin to a “least favored nation” equality theory for race and race consciousness in the equal protection context. 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.

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 project⁹ 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 project²² 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 naïve 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.

I. Aggressively Protecting Equality in the Context of Religion

A. 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 enforce²⁴ 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 Court²⁸ and scholars,²⁹ because of its limitations on the affirmative protection of religious liberty, what is of most importance for this Article is that the decision led to novel ways of thinking about and conceptualizing religious equality.³⁰ Specifically, Douglas Laycock and other scholars have put forward an argument that, properly interpreted, the “general applicability” requirement of Smith requires a “most favored nation” (MFN) approach to religious equality.³¹ Combining a close reading of Smith with the Court’s later decision in Church of the Lukumi,³² and homing in on the concept of underinclusion,³³ this approach proposes that the religious equality protected by the Constitution is violated whenever a law that broadly regulates conduct, or distributes benefits or burdens, permits departures from the broadly applicable rule for certain secular interests and actors but does not permit the same departures for comparable religious interests and actors without compelling justification.³⁴ In such instances, the government has implicitly made an impermissible value judgment that religious reasons for engaging in regulated activity are less valuable and thus less entitled to solicitude, and the Free Exercise Clause requires the government to justify such a value judgment under heightened scrutiny.³⁵

Religious interests and actors are comparable to secular interests and actors for purposes of this analysis whenever their request for an exemption, or the most favorable available treatment, would undermine the state’s interests pursued by its broad regulation to a similar or lesser degree as the secular actors or activities that are being exempted.³⁶ In other words, when it permits the secular interests of some actors to undermine or qualify the broad interests that it otherwise pursues through its rules, the government must permit actors with religious interests to also do so on the same favorable terms—it must “equally value” secular and religious interests rather than “discriminate” against religion by not doing so. For example, if a police department prohibits beards in pursuit of the interest of a uniform appearance of officers to the public but makes exemptions for growing beards for medical reasons, it must also allow officers to grow beards for religious reasons since both exemptions analogously undermine the interest in uniform officer appearance.³⁷ Any refusal to provide such a religious exemption is discrimination against religion that has to be justified under strict scrutiny.³⁸

The MFN approach is an assertive and aggressive equality theory. Even a single secular exception can become the basis for a claim that religious equality rights have been violated and that this violation requires a compelling justification.³⁹ And it does not matter whether that exception is provided in the context of a system of “individualized exemptions” from a broad rule based on the discretion of individual government actors,⁴⁰ or in the context of the legislature making “categorical” exemptions, such as allowing for medical exemptions from a no-beard rule.⁴¹ Moreover, in theory, the MFN approach is applicable with respect to exceptions to broad selection criteria for receipt of government benefits, such as the “good cause” requirement for unemployment compensation,⁴² just like it is applicable to exceptions from broad government prohibitions on specific types of conduct, such as wearing a beard.

Supporters of MFN have put forward three general justifications for such an assertive approach to religious equality. The first is that the First Amendment demands that religious conduct and interests not be “devalued” as compared to their secular analogs.⁴³ Underlying this argument is a claim that religion is in some sense constitutionally “special,”⁴⁴ a category of social experience that is entitled to heightened constitutional consideration and protection from either covert discrimination or governmental indifference.⁴⁵ Where the government is willing to live with some underinclusion in its pursuit of governmental interests, it must ensure that religion as a category, and the way in which religion impacts people’s position vis-à-vis the government’s decision to distribute benefits and burdens, is not part of such underinclusion. One way to conceptualize this argument is that the MFN approach ensures constitutional “fairness” for religious people in a way that is sensitive to their antisubordination interests and fundamental rights.⁴⁶

The second, closely connected, justification is a political process justification: requiring MFN treatment for religious interests and actors provides them with “vicarious protection” in the political process.⁴⁷ By requiring that any exemptions that sufficiently powerful secular interests can obtain are available to religious actors as well, the MFN approach protects religious actors who may not have the clout to influence legislation such that it is explicitly solicitous of their interests and needs.⁴⁸ In that way, MFN ensures that either the government’s interests in regulation are sufficiently strong to subject everyone to them in a similar fashion or that the government does not devalue religious interests when it is willing to pursue its goals in an incomplete fashion. This, too, is arguably an interest grounded at least in part in antisubordination concerns.⁴⁹

The third justification is that an MFN approach to equality helps to “implement[] a nondiscrimination requirement in the face of complexity.”⁵⁰ Because of the wide variety of both secular and religious interests and actors that could be used to determine whether any particular set of differential treatment did or did not involve discrimination against religion, tying the constitutionally required treatment of religious interests and actors to that of the most favorably treated secular interests and actors simplifies the inquiry and protects the constitutionally special status of religious interests and actors at the same time.⁵¹

Most importantly for this Article, the Supreme Court has recently adopted the MFN approach to religious equality at least to some extent, specifically in its emergency relief docket cases related to the COVID-19 pandemic.⁵² Beginning in separate dissenting opinions to decisions that upheld public health regulations as applied to churches and other places of worship,⁵³ the Court eventually (after the appointment of Justice Barrett) consolidated a majority around the proposition that government regulations “trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.”⁵⁴ While the specific cases in which the Court did so were limited to the relatively narrow category of restrictions on worship specifically, some members of the Court’s majority—Justice Kavanaugh in particular—have proposed an expansive interpretation of MFN that is triggered whenever “secular organizations or individuals” are treated “more favorably” (with respect to benefits or burdens) by being put into “favored or exempt” categories but “religious organizations” or “individuals” are not.⁵⁵ Moreover, while some commentators have suggested that the aggressive MFN approach to religious equality might be short-lived at the Court because it would be unnecessary if Smith were overruled and stronger independent religious liberty protections reinstated, others have suggested that the MFN religious equality principle could continue to exist alongside any religious liberty approach the Court might substitute for Smith.⁵⁶ And the Court’s recent Fulton decision has left it unclear whether and when the Court might, in fact, overrule Smith.⁵⁷

B. Disaggregating Equality Questions: Intercategory Versus Intracategory Equality and MFN

The Supreme Court has made clear that it is open to an assertive approach to protecting the constitutional equality rights of religious interests and actors both now and potentially moving forward. To evaluate the relevance of this development for constitutional racial equality jurisprudence, it is important to focus on what an MFN approach implies about the propriety of religion consciousness as a means of ensuring religious equality. By “religion consciousness,” I mean consideration of whether the way in which particular actors are affected by governmental regulation that imposes burdens or distributes benefits is related to their religious convictions.⁵⁸ The MFN approach requires religion consciousness to operate successfully, and it imposes such religion consciousness on policymakers who want to avoid violating its equality commands. Remember that under an MFN approach, a particular regulation, or system of regulations,⁵⁹ violates the equality rights protected by the Free Exercise Clause if (1) at least some actors are exempted from the usual operation of the regulation for non-religious (i.e., secular) reasons; (2) actors who are subject to the regulation for religious reasons are not exempted; and (3) exempting the religious actors from the regulation as well would not undermine the state’s overall regulatory interest to any greater degree than exempting the non-religious actors does. Because religious actors would otherwise be devalued on the basis of their religious reasons for being subject to the regulation, they must receive the most favorable available treatment. The fact that the claimants are subject to the regulation as a function of religion, rather than not religion, is not just required to be taken into account—it is entitled to priority consideration.

In this context, and to properly set up the comparison to race consciousness that follows below, it is important to distinguish between two levels of analysis that are relevant when analyzing religious equality questions and that involve different kinds of religious equality rules between them: the first is an intercategory level, which involves comparisons of the treatment of religion as an overarching category with the treatment of nonreligion, or secular dimensions of life. There are multiple types of intercategory religious equality questions that are relevant to the Free Exercise Clause, generally with corresponding Establishment Clause dimensions,⁶⁰ which one might conceptualize on a spectrum ranging from whether religion can be singled out for negative treatment compared to secular aspects of life⁶¹ to whether religion can be singled out for positive treatment.⁶² The MFN approach is an approach to religious equality at this intercategory level because it is concerned with the treatment of religion, regardless of which variety or denomination, as compared with certain secular interests and actors. In particular, the MFN approach applies to the middle of the spectrum, where religion and religious actors and interests are not clearly singled out in either direction, but rather the question is how they should be treated in relation to comparable secular actors and interests, some of which are treated more favorably than others. In that context, the MFN approach calls for religious actors and interests to receive the more favorable treatment.⁶³

The second level of analysis is an intracategory level, which involves comparisons of the treatment of different religious groups and actors relative to each other. At the intracategory level, the generally prevailing religious equality rule is that the government cannot grant so-called “denominational preferences”—that is, prefer one kind of religious belief or actor over another kind of religious belief or actor in how it treats their interests relative to each other—unless it can meet strict scrutiny.⁶⁴

Importantly, what is required to ensure “religious equality” at one level does not predetermine what is required to ensure religious equality at the other.⁶⁵ More importantly still, consciousness of religion, or taking religion into account, to ensure that the constitutionally special MFN status of religion is properly respected at the intercategory level does not as such equate to improper denominational preferences at the intracategory level. Whether such preferences exist is a separate and complex inquiry that depends on context and how the government might choose to implement an MFN approach.⁶⁶ The Court clearly understands this. In not a single opinion that applied an MFN approach to evaluate the propriety of COVID-19-related restrictions on religious gatherings for worship did the Court evaluate whether permitting such gatherings, because they were comparable to secular gatherings that were allowed, would constitute a denominational preference for religious groups and beliefs that involve gathering in large groups over those that do not.⁶⁷ The key question in each case was an intercategory question: was religion and the way in which its influence exposed people’s behavior to regulation treated equally—defined as MFN status—to secular influences on people’s behavior.

The powerful takeaway from the Court’s movement toward an MFN approach to religious equality in at least some contexts is twofold: first, the move involves a recognition that there are certain constitutionally protected aspects of social life, such as religion, that are entitled to a particularly powerful form of equality protection—MFN status. This powerful equality protection ensures that the government does not devalue these aspects by selectively ignoring them when imposing the burdens of government regulation or distributing its benefits while considering other aspects of social life that may be more powerful in the political process. Second, it recognizes that government consciousness and consideration of those constitutionally special aspects of social life is necessary to be able to implement the kind of equality protection that they are constitutionally due. This consciousness of the constitutionally relevant category as compared to other categories of social life to ensure intercategory equality does not predetermine whether the government is properly implementing a different kind of equality concern, namely the treatment of groups within that category. Such intracategory equality determinations involve separate considerations that are highly context specific.

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 Actions Doctrine

Now compare this equality trajectory in the religion context to the Court’s trajectory in its racial equality jurisprudence, specifically its affirmative action jurisprudence.⁶⁸ In that sphere, far from adopting MFN status for race as a constitutionally especially protected aspect of social life that would often require the government to consider race when distributing benefits or burdens,⁶⁹ the Court is moving toward not even permitting the government to consider race in almost all circumstances. While this point could be made in a variety of contexts where the propriety of the consideration of race in government decisionmaking has been hotly disputed and debated,⁷⁰ in this Article, I focus on affirmative action in higher education. In that context, commentators have predicted that the reconstituted Court may use one of the cases challenging different universities’ race-conscious admissions policies that are pending before the Court, most notably a case by a group called the Students for Fair Admissions (SFFA) against Harvard University,⁷¹ as an opportunity to impose a strict rule of colorblindness on universities.⁷² Taking the implications of the Court’s adoption of an MFN approach to religious equality seriously in this context helps expose analytical flaws in the Court’s approach to the permissibility of governmental race consciousness. It also helps expose how the Court’s approach contributes to the constitutional superordination of whiteness.

With respect to exposing analytical flaws, consider that for some time now the Court has established the following rules as settled doctrine: (1) “Race may not be considered unless the admissions process can withstand strict scrutiny[;]”⁷³ (2) Under strict scrutiny, “racial ‘classifications are constitutional only if they are narrowly tailored to further compelling governmental interests,’”⁷⁴ which in the university admissions context often means the educational benefits of a diverse student body;⁷⁵ and (3) Under the narrow tailoring prong, “strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”⁷⁶ “If ‘a nonracial approach could promote the substantial interest about as well and at tolerable administrative expense,’ then the university may not consider race.”⁷⁷ If the Court were to take seriously anything like an MFN approach to racial equality, neither the first rule nor the third rule would be justified.

Consider the first rule. This doctrinal rule addresses an intercategory question: May race be considered as a relevant category in a university admissions system? Current doctrine says that it cannot be considered unless strict scrutiny is met, regardless of what the admissions system looks like otherwise. This is emphatically not an MFN approach for race, even though race is undoubtedly an aspect of social life that receives special constitutional consideration, perhaps more than any other.⁷⁸ Indeed, the prohibition against racial discrimination is perhaps the most well-established antidiscrimination norm of all.⁷⁹ Thus, if the Court was truly interested in the consistent application of constitutional principles, there is a strong case for applying an MFN approach to racial equality, and one would expect the Court to at the very least explain why an MFN approach to racial equality is not appropriate.⁸⁰

Under an MFN approach, of course, the Court would have to engage in a much more nuanced analysis of the propriety of race consciousness than it does under current doctrine. We can begin to explore this point in reference to the First Circuit’s decision in the SFFA case against Harvard. At a broad level, Harvard’s admissions process can be conceptualized as analogous to a combination of types of situations in which the MFN approach applies: the unemployment benefits cases because it is a process involving individualized eligibility determinations for certain “benefits” that restricts those benefits only to certain specified reasons or selection criteria;⁸¹ and the kinds of processes referenced by Justice Kavanaugh that “divvy up” benefits recipients “into a favored or exempt category and a disfavored or non-exempt category” and “provide benefits only to [those] in the favored or exempt category.”⁸² Specifically, Harvard’s admissions system is highly individualized but generally considers applicants for admission on the basis of six ratings—academic ratings, extracurricular ratings, athletic ratings, school support ratings, personal ratings, and overall ratings—which are assigned to all candidates before their individual candidacy is put to an “all things considered” vote by the admissions committee.⁸³ Crucially, however, through an “overlay” to its process, Harvard also provides a specific benefit—so-called “tips” or “plus factors” that increase a candidate’s chance of admission.⁸⁴ While there are a number of possible “tip factors,”⁸⁵ “the four most notable groups of applicants” receiving these tips⁸⁶ (in addition to racial minority applicants, as I discuss separately below)⁸⁷ are recruited athletes, legacy applicants, applicants on the Dean’s Interest List (usually because they are children or relatives of donors), and children of faculty or staff (the “ALDC” applicants).⁸⁸ “These applicants have a significantly higher chance of being admitted than” everyone else.⁸⁹

In other words, Harvard considers these special life circumstances that it particularly values to be “good cause” for providing an admissions benefit to ALDC candidates that is not available to others,⁹⁰ just like in the unemployment compensation cases there were some reasons, or “good causes,” based on which certain people would receive benefits despite rejecting work that others had to accept.⁹¹ Or in Justice Kavanaugh’s terms in Calvary Chapel, Harvard “divvies up” applicants and puts applicants “into a favored or exempt category”⁹² that receives the benefit of tips in its admissions process on the basis of the ALDC selection criteria. If race were treated under an MFN equality approach, the conclusion from this would be that just like “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason,”⁹³ Harvard could not “refuse to extend [its] system” of tips “to cases of ‘[racial] hardship’ without compelling reason.”⁹⁴ And in order to accomplish this, Harvard would have to include race in the group of “special circumstances” criteria for determining who is put into the “favored or exempt category” of receiving admissions tips.⁹⁵

To properly situate this point, it is important to note that “the free exercise of religion is essentially a dignitary right,” a “right of self-determination and fulfillment.”⁹⁶ “It enables people to define themselves in critical ways rather than have the state determine these essential aspects of a person’s identity and sense of self.”⁹⁷ Thus, the kind of “religious hardship,” or obstacles to self-definition and dignity, against which the First Amendment protects under an MFN approach includes the government selectively disadvantaging people who are affected by government regulation of activity, or rejected for a particular benefit, because sincerely held religious reasons underlie their behavior or circumstances rather than comparable secular reasons.⁹⁸ As noted above, the idea behind this is that such selective negative treatment of religious reasons is thought to “devalue” those religious reasons—and thus religion as a source of dignity, self-definition, and self-determination—which amounts to discrimination against the specially protected constitutional status of religion.⁹⁹

The Constitution’s racial equality protections of the Fourteenth Amendment, of course, also include as significant components the protection of dignity, self-definition, and self-determination without being devalued on the basis of race. This much has been recognized at the very least since Brown v. Board of Education declared racial segregation unconstitutional because it denied this dignity and instead implied racial inferiority and imposed demeaning and stigmatizing negative effects on the community status, self-definition, and opportunities of Black Americans for personal self-development “in a way unlikely ever to be undone.”¹⁰⁰ And an admissions regime that does not consider applicants’ race is highly likely to inflict on many applicants “racial hardships” that ignore these dignitary aspects of their equality rights analogous to the religious hardships that the MFN approach protects against. Devon Carbado and Cheryl Harris have provided one vivid and in-depth illustration of this point in their analysis of the burdens that “colorblind” university admissions regimes impose on what they call “race-positive applicants,” that is, applicants “who wish to make race salient in formally race-free admissions processes” because of the deep and important ways in which it has shaped their lives.¹⁰¹ Focusing specifically on the implications of “colorblindness” for the personal statement, Carbado and Harris use real personal narratives to illustrate the costs and harms imposed on such applicants both in terms of how a colorblind regime burdens these applicants’ exercise of their personal agency, identity, and self-definition¹⁰² as compared to “race-negative applicants,” that is, applicants “for whom race is not a salient aspect of their identity,”¹⁰³ and in terms of distortions that attempts to be “colorblind” introduce into universities’ institutional evaluation of such applicants’ files.¹⁰⁴ As Carbado and Harris note, “requiring [such] applicants . . . to excise race from their applications at best distorts their lives or renders their experiences incomplete” and “[a]t worst[, through] discursive racial cleansing[,] makes their life story impossible to understand.”¹⁰⁵ Moreover, these costs are unavoidable when race is ignored and thus illustrate “the problem of formally removing race from an admissions process against a social backdrop in which race both matters and is cognizable.”¹⁰⁶ These are also not the only racial hardships that an admissions process that selectively ignores race tends to impose. ¹⁰⁷

It should go without saying that these “racial hardships” should be considered a serious constitutional problem by a Court that has described the goal of the Fourteenth Amendment as “a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement.”¹⁰⁸ But they are even more of an equality problem when evaluated within an MFN framework. Because Harvard’s admissions process provides the analog of “a system of individual exemptions”¹⁰⁹ or of creating a “favored or exempt category”¹¹⁰ based on the ALDC criteria, under an MFN analysis, Harvard should be required to extend its system of priority consideration to the criterion of race as well. In other words, to the extent that Harvard accepts some special life circumstances of candidates as a reason to provide them with a benefit that is otherwise not available, it should also accept an applicant’s race or race-related life circumstances to the extent that they are relevant to the consideration of their potential as an applicant¹¹¹—that is, to the extent that not considering race as a factor for such applicants would impose “racial hardships.” Not doing so would devalue the interests of those applicants for whom race is a critical aspect of their life circumstances to have their application fairly considered vis-à-vis the ALDC applicants who do receive such consideration for non-race-based aspects of their lives. Such a choice by Harvard would require a compelling justification under an MFN approach.¹¹²

Within an MFN framework, the consideration of race would certainly be “comparable” to the consideration of the ALDC factors, in the sense that it would undermine, to a similar or lesser degree, the university’s overall interest in using the admissions system to admit the most “compelling candidates”¹¹³ for fulfilling its mission “to educate the citizenry and citizen leaders for our society.”¹¹⁴ To take legacy admits as a clear example, Harvard justifies the use of this special criterion for tips because it “helps to cement strong bonds between the university and its alumni, fosters community-building, and encourages alumni to donate their time and money to support Harvard.”¹¹⁵ While this is arguably related to the school’s educational mission, giving a boost in admissions to legacy admits over candidates who are otherwise more “compelling” on the school’s general admissions criteria does seem to detract from its stated academic interests and mission. By contrast, taking into consideration the way in which an applicant has negotiated, and has been affected by, the ever-present dynamics of race in a multiracial democracy with the dark racial past and present of the United States, and having such candidates benefit from and enrich the learning environment at the school, seems to affirmatively contribute to the school’s educational mission.

And indeed, this is in part why Harvard actually does consider race as part of its tips system.¹¹⁶ My point in this example is not to criticize Harvard’s current admissions systems for not considering race. Instead, it is to point out the flaws of current equal protection doctrine under which Harvard’s choice to consider race—the choice that an MFN understanding of racial equality would seem to require from Harvard—treacherously exposes the university to a ruling that it is engaged in unconstitutional race discrimination. As noted above, under current equal protection rules, Harvard has to justify the consideration of race under strict scrutiny. Under the MFN approach, if one accepts the above discussion as an at least plausible analogy to the MFN analysis that the Court is moving toward in the context of religion, Harvard would have to justify not considering race under strict scrutiny.¹¹⁷ This is a massive gap in constitutional principles that suggests selective solicitude for comparable constitutionally protected equality rights. And as discussed below, the way that the Court implements this selective solicitude illustrates the Court’s participation in a racial project to superordinate whiteness through constitutional interpretation.

For similar reasons, the current rule that race may only be considered if there are no workable race-neutral alternatives¹¹⁸ is also flawed. To the extent that an MFN approach would often seem to require race to be considered to avoid devaluing a constitutionally specially protected aspect of social life, such a requirement would seem deeply counterproductive to ensuring racial equality, properly conceived. Indeed, it seems fair to describe the Court’s current equal protection rules regarding race consciousness as implementing something akin to a “least favored nation” equality theory for race and race consciousness. That is, the Court’s approach to narrow tailoring requires government actors to prioritize all other non-racial categories and aspects of life in achieving its educational interests over race consciousness.¹¹⁹ This doctrinal incentive structure encourages universities to significantly devalue the interests of those for whom race is a significant force in determining their life circumstances as they relate to university admissions compared to those whose other exceptional life circumstances universities are permitted to consider and do consider. In other words, the Court through its own race-consciousness jurisprudence is constitutionally encouraging and incentivizing, perhaps even forcing state actors to do precisely the kind of thing that it is faulting them for doing in the religion context: to be insensitive to the constitutionally protected equality interests that attach to certain significant aspects of people’s social life, such as religion and race, and to not at least equally value them compared to less protected interests when implementing their overall policy interests.¹²⁰

As discussed earlier with respect to religion consciousness, this analysis of the propriety of race consciousness as an aspect of government decisionmaking is analytically prior to, and does not predetermine any particular answer to, the question of how race should be considered in terms of intracategory distinctions that might be drawn once race is considered.¹²¹ Consistent with my intercategory versus intracategory distinction, Carbado and Harris make clear, for example, that applicants of any race can be “race-positive.”¹²² Thus, considering race to ensure that race-positive candidates are not devalued on the basis of the fact that race has shaped their life experience in indelible ways relating to the strength of their application for admission is not, as such, an intracategory “racial preference” for candidates of one race over another.¹²³ Indeed, whether “any given process is race neutral or a racial preference is unavoidably contingent on a mixed question of fact and normativity: our characterization of the social context in which the racial decision-making occurs.”¹²⁴ That is, whether taking race into account is a “preference” that violates the requirement of equality to treat similarly situated people equally is highly context specific because “[w]hat it means to be similarly situated depends on why we are asking”¹²⁵ and requires a normative judgment about “the proper baseline for determining entitlement to a societal resource under some ‘natural’ state of affairs, before any artificial distortion of that natural state has occurred” via a “preference.”¹²⁶

Thus, even if in a particular context race is considered in a way that benefits predominantly, or perhaps even only, members of some racial groups, this does not by itself mean that there is a “racial preference,” so long as the beneficiary groups are not similarly situated with the groups that do not benefit—for example, because they are disadvantaged by an unequal status quo baseline with respect to the purposes being pursued by the relevant program. For example, a program that considers race to ensure that race-positive applicants are not disadvantaged in being able to demonstrate in their applications all of the attributes, contributions, and experiences that they would bring to a university’s educational environment¹²⁷ would likely predominantly (though not exclusively)¹²⁸ benefit non-white applicants “[b]ecause it is reasonable to assume that non-whites are more likely to have a race-positive sense of identity.”¹²⁹ But it would not be a racial preference for that reason. If anything, it would be a necessary countermeasure to prevent a colorblind process from disadvantaging “people of color who live their lives negotiating the fact that they are not in fact white”¹³⁰ by erasing a significant aspect of their lives and identities (based on the social-psychological phenomenon “that in the absence of an indication that a person is not white, the default presumption is that the person is white”¹³¹).

That race consciousness, even if it predominantly benefits members of only certain groups, need not be, and often is not, a racial preference could be demonstrated in many other contexts as well. If the purpose of race consciousness is racial integration of previously segregated spaces (proceeding from the assumption that the Constitution requires a baseline of integration), for example, and previous segregation has exclusively negatively affected communities of color, it is not a racial preference to consider race as a positive factor for only these communities.¹³² Similarly, if the purpose of race consciousness is to ensure that universities accurately measure the academic potential of applicants of different racial groups (proceeding from the baseline that applicants with equal potential should have equal chances of admission) and widely-used measurement tools for such potential, including standardized tests, grades, and letters of recommendation, often are infected by racial bias that predominantly disadvantages applicants of color because of their race, then taking race into account predominantly for applicants of color to counteract such bias is not a racial preference.¹³³ And if the purpose of race consciousness is to provide appropriate remedies for previous instances of racial discrimination, then taking race into account only for members of groups against which there has been discrimination is not a racial preference.¹³⁴ The point here is not that race consciousness can never lead to racial preferences, properly understood. It is that the two questions pertain to two different levels of racial equality analysis and do not predetermine each other, and that equating race consciousness with racial preferences improperly taints the often necessary and appropriate consideration of race with the accusation that it inherently involves racial discrimination.¹³⁵

While the Court’s approach to the subject of denominational preferences in the religion context is far from clear¹³⁶ and not necessarily substantively satisfying in all respects,¹³⁷ the Court has at least neither conflated an MFN approach to religion with denominational preferences¹³⁸ nor conflated the explicit consideration of religion and distinctions among groups of people based on their religious beliefs with denominational preferences as such.¹³⁹ By contrast, the Court seems poised to move further in the direction of accepting the false equation of race consciousness as such with the granting of illegitimate racial preferences for members of racial minority groups—a view that too many liberals share¹⁴⁰—and toward underwriting the claim “that all identity-conscious policies constitute forms of preferential treatment and discrimination.”¹⁴¹ If this claim is not rejected and properly countered, “the ever broadening category of ‘preference’ will eventually grow to include every race sensitive policy including the conscious objective of achieving a fully diverse and integrated society.”¹⁴² This, too, would be consistent with the Court’s participation in a “Second Redemption.”

B. Race and Religion Are Sufficiently Comparable

Of course, the analogy that I am proposing between race and religion here is not perfect. While space does not permit a full discussion of possible objections,¹⁴³ I want to address briefly what I consider to perhaps be the strongest one: even if race and religion are equally “special” categories of social life for purposes of constitutional equality protections as I suggest, they are special in different ways that undermine the claim that an MFN approach should apply to race and allow for greater race consciousness.¹⁴⁴ Specifically, the Religion Clauses in general, and the Free Exercise Clause in particular, treat religion as a special category of social life that is “in significant respects ‘difference-regarding’”¹⁴⁵ and “counter-assimilationist” in that they “strive[] to allow individuals of different religious faiths to maintain their differences in the face of powerful pressures to conform.”¹⁴⁶ The Equal Protection Clause with respect to race, on the other hand, is said to be predominantly “difference-denying” in that “race is a characteristic that ultimately should not matter to the government.”¹⁴⁷ In other words, “the ideal of racial nondiscrimination is that individuals are fundamentally equal and must be treated as such; differences based on race are irrelevant and must be overcome.”¹⁴⁸ As a result, “colorblindness” in the sense of ignoring race as a category of analysis is said to be the best way of ensuring that the fundamental equality of people of all racial groups is respected—“for constitutional purposes, all persons are similarly situated without regard to their race or national ancestry. To treat these groups equally the government simply has to ignore their suspect differences.”¹⁴⁹ Such a difference-denying conception, of course, suggests that applying the MFN approach to race is not appropriate because it would involve, and indeed encourage, much more race consciousness than current doctrine.

The most important problem with this argument is that it would seem to be implicitly based on a simplistic, formalistic, and thus highly problematic definition of race as “merely ‘skin color,’” or what Neil Gotanda calls “formal-race.” ¹⁵⁰ Such a definition of race is disconnected from both the historical contingencies and context,¹⁵¹ as well as the cultural,¹⁵² structural, and ideological dimensions¹⁵³ that the complex social construct of race in reality entails.¹⁵⁴ After all, only if race is stripped of its various substantive meanings and dimensions does it make sense to predict that ignoring people’s race will lead to equal treatment.¹⁵⁵ But disregarding these substantive meanings and dimensions of race defies both the history and the lived reality of race in America.¹⁵⁶ A difference-denying approach, moreover, “neglects the positive aspects of race, particularly the cultural components that distinguish us from one another.”¹⁵⁷ Indeed, because of the structural dynamics of white supremacy that make whiteness the unspoken norm in most contexts, ignoring people’s racial differences tends to turn into an “assimilationist vision” that “would require abolishing the distinctiveness that we attribute” to the “community, culture, and consciousness” of non-white racial groups.¹⁵⁸ “This is neither a race-neutral nor a colorblind position”¹⁵⁹ but instead generally reflects the preferences of whites.¹⁶⁰

A more multifaceted understanding of race would recognize that “the complex and socially embedded character of race” often calls for a highly contextually situated difference-regarding approach—an approach that would respect what Gotanda calls the “free exercise of race,” along with its corresponding “establishment” limit that the government may not establish racial subordination and white supremacy.¹⁶¹ If such an approach were taken, wouldn’t the following paragraph, taken from an author who has distinguished race and religion in the ways suggested above, also ring true if race were substituted for religion?

Often, however, liberty and equality in law require that people of one faith should be treated differently than people of another religion. Religious people who are not similarly situated in their beliefs and practices should not be treated as if they were fungible clones. In aspects of life in which religion matters for particular faith communities, government rules that ignore religious distinctions coerce a false homogeneity among individuals who are different in fundamental ways. Religious liberty does not exist when the burden of a law that interferes with the practice of one’s faith is ignored because the law does not interfere with the majority of people who practice a different faith. Religious equality is sacrificed when laws are tailored to accommodate the needs of majoritarian or favored religions, but not minority or disfavored faiths. A legal regime grounded on formal neutrality is inconsistent with this core principle.¹⁶²

A main benefit of taking an MFN approach in the context of racial equality would be that it would sharpen both government actors’ and courts’ analytical focus on the right questions. For government actors, the questions would be: (1) “Am I treating certain social interests more favorably than others in my decisionmaking? In other words, am I willing to live with underinclusion? If so, I have to make sure, given the importance of race in structuring people’s lives, that I consider it as well.” (2) “How is race structuring different people’s lives in relation to my decisionmaking, and how can I make sure that I don’t create a racial preference as a result of this?” The second question is highly context specific and may well justify taking race into account differently for different groups of people because race structures their life experiences differently in ways that matter to the specific government program at issue. The fact that it would push constitutional jurisprudence more firmly toward asking these important questions with more nuance would be a major benefit of adopting an MFN approach with regard to race and not just with regard to religion. Race and religion are surely not identical concepts.¹⁶³ But to use Chris Lund’s term in a slightly different context, I believe that they are “similar enough”¹⁶⁴ in this context to allow for the conclusion that if the Supreme Court’s goal were to treat constitutionally special aspects of life consistently, it would have many good reasons to implement an MFN approach in the context of race as well.¹⁶⁵

Moreover, the general justifications offered for the MFN theory in the religion context¹⁶⁶ also apply to the race context. As discussed above, ignoring race but taking into consideration other life aspects, for example one’s legacy status in the context of university admissions, implicitly devalues people for whom race has shaped their position in relation to broad race-neutral university admissions standards and for whom ignoring race will disadvantage them.¹⁶⁷ There are also at least some situations in which race consciousness arguably requires vicarious political protection. Precisely because it has the potential to interfere with entrenched social hierarchies, the very idea of race consciousness triggers deep racial resentment among many white Americans, as evidenced by the dynamics of state constitutional initiatives that have outlawed it in some states.¹⁶⁸ Provisions for considering legacy or donor or athletic status generally do not trigger the same reaction, so categorical opponents of race consciousness might have to reconsider their stance if constitutional doctrine were to tie their availability to each other. And similarly, the complexity of possible comparisons of the kinds of aspects of social life that processes like university admissions could consider also justifies putting race into an MFN category to ensure that the constitutionally special considerations of racial equality are at the forefront of decisionmakers’ minds.

To sum up the above, the Court has come to conclude in the religion context that the devaluing of religion, a constitutionally special aspect of social experience, is an affront to constitutionally required dimensions of equality and that an assertive approach, the “most favored nation” approach, is necessary to protect this equality. If the Court was interested in the consistent application of constitutional principles of equality, one would expect the Court to apply a similar approach to racial equality. The fact that the Court is not only not doing so but seems poised to push its jurisprudence in these two contexts conceptually further and further apart from each other is telling.

C. The Superordination of Whiteness

The main beneficiary of this constitutional inversion of approaches to equality is whiteness. That is, through implementing this inversion into its constitutional doctrine, the Court is contributing to the racial project of superordinating whiteness by setting the interests of white Americans as the normative baseline for what kinds of constitutional rights the Court will protect and how in both contexts. With respect to race consciousness in university admissions, the Court’s restrictive approach benefits whiteness because it puts extremely high doctrinal obstacles in the path of efforts whose goal is to intervene in, and undo manifestations of, racial hierarchy in access to the institutions that provide the pathways to political power and economic success. The doctrine pushes universities toward eliminating the consideration of race in admissions, which often significantly reduces the representation of non-white students.¹⁶⁹ Moreover, by restricting the ways in which race can be considered, it imposes costs on applicants for whom race is a particularly meaningful dimension of social experience, which also predominantly affects people of color.¹⁷⁰ By contrast, existing constitutional rules make it more easily justifiable for universities to consider categories of social life in admissions, such as legacy status or relationships to donors, that, at least at universities like Harvard but also more generally, predominantly benefit white applicants.¹⁷¹

In the religion context, the Court protects the interests of white Americans as the normative constitutional baseline, not through its choice of whether to apply the MFN approach as such, but through its selectiveness of when it applies the approach. As Nelson Tebbe has explored at some length, in recent years, the Court has overwhelmingly used the MFN approach in cases in which it benefitted the interests of “mainstream religious denominations—including the United States’ largest Christian groups, Roman Catholics and Protestant Evangelicals.”¹⁷² To the extent that those denominations cover the vast majority of religious white Americans,¹⁷³ constitutional doctrine protects their religious equality interests as normative. More telling, however, is that the approach “was conspicuously absent”¹⁷⁴ from the Court’s toolkit where it would have benefited the religious equality interests of a predominantly non-white group, namely those of Muslims in the “travel ban case” of Trump v. Hawaii.¹⁷⁵ As Tebbe explores, separate from the fact that the Court ignored clear evidence of anti-Muslim discriminatory intent in ways that it has not ignored when the rights of white Christians are at stake,¹⁷⁶ the Court also refused to apply the MFN approach in Trump when doing so would have significantly complicated the Court’s facile dismissal of the legal challenges to the travel ban.¹⁷⁷ The Court chose instead to provide deference to the political branches based on doctrines in immigration law¹⁷⁸ that themselves are grounded in a long history of racism against non-white immigrants.¹⁷⁹

On the whole, the Court’s approach to equality in both the religion and race contexts superordinates the interests of whiteness in a cumulative and cross-contextual fashion. This is not the result of the consistent application of constitutional principles. Even if arguments can be made to justify the Court’s approach in each context in isolation, a critical doctrinal comparison across contexts illuminates the novel ways in which the Court participates in the racial project of superordinating whiteness and thus contributes to the perpetuation of a basic social system structured by white supremacy.

Conclusion

“The interpretation of particular constitutional provisions . . . must adapt to changes that occur elsewhere in the constitutional matrix. At a minimum, collateral changes raise important questions of interpretation.”¹⁸⁰ The main purpose of this Article was to point out the troubling direction for racial equality progress that the Supreme Court’s constitutional jurisprudence is taking with respect to the intersection of two deeply important aspects of social life in the United States—race and religion. From the standpoint of those who believe that racial equality continues to be more aspiration than reality—as evidenced by the dual pandemics of the COVID-19 virus that has exacerbated many pre-existing racial inequalities and of police brutality that continues to dehumanize communities of color, in particular the Black community¹⁸¹—it does seem hard to avoid the conclusion that we are in the middle of what is at least an attempted “Second Redemption.”¹⁸² The Supreme Court is contributing to this Second Redemption through a practice of constitutional interpretation in the contexts of race and religion that this Article has described as the superordination of whiteness. This approach prioritizes the interests of whiteness, establishes them as the normative baseline that the Constitution ought to and will protect, and thereby contributes to the perpetuation of a racial hierarchy that is grounded in an ideology of white supremacy. We should reject this trajectory, and forcefully so.

Just as the rise of the MFN approach in the context of constitutional religious equality rights but not in the context of racial equality rights illustrates novel ways in which the superordination of whiteness and the process of preservation-through-transformation proceed,¹⁸³ it might also help to point toward new ways in which we might attempt to challenge this trajectory. One such way might be to intensify the conversations and collaborations between scholars of race and religion who agree that the Court’s current trajectory, when viewed cross-contextually across the areas of both race and religion, is illegitimate. Religion scholars currently appear to have an increasing intellectual influence on a majority of the Court, and the Court has cited them in implementing the MFN approach discussed in Part I. Those same religion scholars tend to not discuss, or to tentatively reject, that the MFN approach also supports a more affirmative stance toward race-conscious approaches to racial equality, as long proposed by racial equality scholars, who the Supreme Court very much does not cite. If scholars were willing to coalesce around scholarship that, through doctrinal intersectionality, aims to uncover the egalitarian potential of both lines of constitutional jurisprudence, might it make a difference? Might it convince the Court that, properly conceived, an MFN approach to questions of racial equality is appropriate and calls for a more context-sensitive approach to the question of race consciousness as well? Perhaps, and I believe this should be attempted.

Separately, President Biden created a commission on the study of the Supreme Court, some members of which have sharply criticized the Supreme Court for being an institution that predominantly protects dominant interests through its exercise of judicial review.¹⁸⁴ The fact that the Court is engaging in the superordination of whiteness in various contexts can and should strengthen such critiques of the current practices of the Court and flow into proposals for how to reform the institution.

Finally, from the standpoint of public opposition to the Court’s problematic practices, one goal of exposing the Court’s superordination of whiteness is to show that the fates of constitutionally protected groups and interests are linked in important ways. Especially for white Christians, who have long been accustomed to setting the standard for moral authority in the United States, it will be important not to take a myopic view that is focused on legal victories for narrowly defined religious interests. Instead, white Christians ought to focus on the overarching principles of equality and liberty that underwrite constitutional protections for their own interests and that are constitutionally due not just to them but also to those groups who are subordinated on the basis of both race and religion. Anthea Butler puts the question bluntly in her recent book: “Whom will you serve?”¹⁸⁵ She notes that even if evangelicals get everything they currently say they want, racism will not be addressed. She thus calls on evangelicals to take a broader view of their social obligations.¹⁸⁶ Perhaps exposing the Court’s racial project of superordinating whiteness, as illustrated by the Court refusing to provide the same equality protections to those who are disadvantaged as a function of race as it provides to those who would otherwise be disadvantaged as a function of their religion, will help convince some to speak out and act against structural racism in whichever way might be accessible to them. If the painful lessons of the First Redemption tell us anything, those of us who oppose the Second Redemption will need all the help we can get.

* Acting Assistant Professor of Lawyering, New York University School of Law and incoming Associate Professor of Law, New York Law School. I am deeply thankful to Angela Onwuachi-Willig for encouraging and inviting my participation in this Colloquium. For comments on or conversations or exchanges about this Article or the ideas on which it rests, I thank Devon Carbado, Jeremiah Chin, Caroline Mala Corbin, Jonathan Feingold, Abner Greene, Chris Lund, Chip Lupu, Deborah Malamud, Reggie Oh, Russell Robinson, Zalman Rothschild, Faraz Sanei, Nelson Tebbe, and participants in the Twelfth Annual Loyola University Chicago School of Law Constitutional Law Colloquium as well as the 2022 American Constitution Society Constitutional Law Scholars Forum. I also thank the editors of the Michigan Law Review for organizing this fantastic Colloquium and for their excellent work and support in completing this Article.