Joy Milligan, Religion and Race: On Duality and Entrenchment, 87 N.Y.U. L. Rev. 393 (2012)
Can religion or race ever be the basis for legitimate government policies? For several decades, constitutional law concerning both religion and race has moved toward a model of formal neutrality. At its most expansive, the formal neutrality model bars all religion- or race-based decisions by government.
Recently, though, the Court has rejected an absolutist version of neutrality in the religion context. While maintaining that the First Amendment’s religion clauses themselves require only impartiality, the Court has allowed governments space to pursue substantive, constitutionally grounded concerns about religion, even if the resulting policies favor or disfavor individuals based upon their religion. The Court calls this space the “play in the joints” of the religion clauses: It allows governments to pursue separation of church and state or affirmatively protect religious exercise. But in the equal protection context, the Court has not shown such flexibility toward race-based action that is inspired by constitutional concerns, whether the policies are aimed at racial integration or substantive racial equality.
In this Article, I argue that the religion clauses and the Equal Protection Clause serve similar dual goals: protecting minorities from substantive harms and preventing majorities from entrenching their own power via the state. Formal neutrality prevents governments from addressing these constitutionally based concerns. The Court apparently grasps this difficulty in the religion context and has resisted this outcome by providing play in the joints. Yet formal neutrality generates the same problems in the equal protection context. I argue that the Court should extend the notion of play in the joints to race doctrine. I conclude by explaining what this approach would require and how it would address the normative concerns underlying formal neutrality