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Discriminatory Permissions and Structural Injustice

By Lawrence G. Sager & Nelson Tebbe. Full Text.

America is engaged in a nationwide conversation about conscience exemptions from equality laws. So far, that conflict has been debated in terms of religious liberty. Courts have asked whether religious actors like Hobby Lobby and Masterpiece Cakeshop are entitled to exemptions from civil rights laws and whether any such exemptions count as establishments of religion. This framing overlooks an important issue, namely whether any such exemptions violate the Equal Protection Clause. In this Article, we argue that explicit state enactments that both permit and encourage private discrimination against people subject to structural injustice can and should be invalidated by judges as violations of equal protection. These discriminatory permissions place the authority of the state behind patterns of diminished membership in the polity and the society. Not only are they normatively objectionable, but they also contravene a constitutional rule grounded in a line of cases dating back more than a century. We recover the discriminatory permissions doctrine, and we apply it to current debates over state exemptions from civil rights laws. In the course of defending the doctrine, we clarify the obligation of states to ameliorate structural injustice, we describe an important constitutional division of labor between legislatures and courts, and we specify the role of social meaning in identifying discriminatory permissions.