On Thursday the Washington Post reported on a controversy over the 10% tax on tanning salons included in Obamacare. (According to CNN, that tax is expected to raise $2.7 billion over 10 years.) “Since patrons of tanning salons are almost exclusively white,” the critics claim, “the tax will be almost entirely paid by white people and, therefore, violates their constitutional right to equal protection under the law.”
Acting like sunscreen, Washington Post staff writer N.C. Aizenman tries to shield the tax from that argument, and brings in a Harvard law professor to apply the screen.
But does the argument have any merit? Not remotely said Randall Kennedy, a professor at Harvard Law School specializing in racial conflict and law.
Kennedy’s argument?
“There is no constitutional problem at all, because a plaintiff would have to show that the government intended to disadvantage a particular group, not simply that the group is disadvantaged in effect,” he said.
Kennedy said that this is why courts have upheld a raft of other laws that also happen to have a disproportionate impact on particular groups. For example, laws that impose higher penalties for possession or trafficking of crack cocaine as opposed to powder cocaine resulted in far harsher sentences for African Americans compared to whites. And laws that offer preferential treatment for veterans are much more likely to benefit men than women. But in both cases judges ruled that, because lawmakers did not intend to disadvantage black people or women when drafting those laws, they are legal.
But if it is necessary to prove intent, then there is no such thing as disparate impact discrimination, or at least that no disparate impact claim would survive in court.
I have commented before on some of Randall Kennedy’s confusing and even “inscrutable” views about discrimination (see here and here), and his rather extreme defense of the tanning tax seems to be another example. Would he offer the same defense, I wonder, for taxes on, say, on kosher food or black hair care products?
I wish he were right about the necessity of always proving intent, but I’m afraid he isn’t.
