Discriminatory Permissions and Structural Injustice

73 Pages Posted: 6 Jan 2022

See all articles by Lawrence G. Sager

Lawrence G. Sager

University of Texas at Austin - School of Law

Nelson Tebbe

Cornell Law School

Date Written: January 5, 2022


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.

Keywords: equal protection, free exercise, establishment clause, civil rights, civil liberties, equality law

Suggested Citation

Sager, Lawrence G. and Tebbe, Nelson, Discriminatory Permissions and Structural Injustice (January 5, 2022). Minnesota Law Review, Vol. 106, p. 803, 2021, Available at SSRN: https://ssrn.com/abstract=4001832

Lawrence G. Sager

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
1 University Station Stop D1800
Austin, TX 78705
United States
512-232-1322 (Phone)
512-471-6988 (Fax)

Nelson Tebbe (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Ithaca, NY 14853
United States
(607) 255-3506 (Phone)

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