By Mike Dorf
My latest Verdict column discusses a recent decision by the Supreme Court of Israel invalidating a law that exempts ultra-orthodox Jews from military service on grounds that the law violates the equality rights of the Israelis who do not get the exemption. After explaining the ruling, I use it as a springboard for discussing a couple of issues in the U.S.: affirmative action and religious exemptions. Here I want to add a few thoughts on the former.
As I explain in the column, the dissent in the Israeli case argues that laws benefiting minorities shouldn't be subject to judicial invalidation because the majority that is disadvantaged can use the political process to gain redress, and thus the heavy artillery of judicial review should be reserved for laws that disadvantage minorities. That argument should be familiar to Americans because it is similar to an argument made by liberal supporters of race-based affirmative action in support of a deferential standard of review. I go on to explain in the column that the parallel between the Israeli case and the American debate is not perfect, in part because the dissent in the Israeli case appeared to be arguing for no judicial scrutiny at all, whereas liberals in the U.S. argued (at least through the 1980s) for an intermediate standard for affirmative action, not a completely deferential standard. And the majority in the Israeli case actually does adopt an intermediate standard.
In any event, putting aside the parallelism or lack thereof, here I want to explore the significance of whether a law benefits or burdens a minority group. The way that I've just presented the issue--and the way I present it in the column--casts the question as one of political power. Following John Hart Ely's exposition of the Carolene Products footnote 4 formulation, American equal protection law focuses on whether a law disadvantaged a "discrete and insular minority" because such a group will have difficulty protecting itself in the interest-group bargaining process of American politics. Thus, in the classic account, special judicial solicitude is needed for laws disadvantaging such groups.
As I note in the column, that view has been called into question by critiques grounded in public choice theory. In the legal academic literature, the leading example of this critique was a 1985 Harvard Law Review article by Bruce Ackerman called Beyond Carolene Products, in which Ackerman explains why discrete and insular minorities may, by virtue of those characteristics, be better positioned to advance their interests through the political process than are inchoate, diffuse majorities. Yet Ackerman does not conclude that therefore traditionally disadvantaged minority groups (like African Americans) should be robbed of judicial protection. Instead he concludes that in addition to focusing on lockouts from the political process, American equal protection law ought to focus on prejudice.
Now one needs to say more about prejudice, of course, but I think the basic idea is captured in what is wrong with Justice Scalia's dissenting view in Romer v. Evans, in which he asserts that gay people are not deserving of special judicial protection because, in virtue of their "enormous influence in media and politics," they can help themselves quite well in the political process. Even if one buys the underlying factual claim, the conclusion hardly follows. A minority group can be disproportionately politically powerful and also the victim of very serious prejudice that finds its way into law.
The tricky part, of course, is knowing how to distinguish between laws based on prejudice and laws that are simply the result of the legitimate play of political forces. I have always taken Ackerman's point to be that the attraction of process-focused views like Ely's is their ability to seemingly bypass that substantive challenge, but that the attraction should be resisted because it's based on bad political science. My own view in this regard is that normative judgments are unavoidable here but that the core issue is not simply normative; it also has a descriptive dimension. We are interested in a particular sort of complex fact: namely, what is the social meaning of a law that disadvantages or advantages a minority group? If the law's social meaning is second-class citizenship, then that ought to be deemed a denial of equality. As I've explained in some of my academic work (e.g., here), that can be a hard question to answer, but answering it is not simply a matter of picking favored and disfavored values.
Sometimes a law benefiting a minority (or a minority-equivalent) may be deemed to have the social meaning of the inferiority of that minority (or equivalent), as was true of paternalistic laws conferring seeming benefits on women. Much more controversially, opponents of race and sex based affirmative action often claim that such programs connote the inferiority of their beneficiaries, by indicating that they cannot succeed on a level playing field.
But in a pluralist democracy, a law that benefits a minority will rarely carry the social meaning that the majority is in some sense inferior. The Israeli ultra-orthodox exemption case may be a rare exception to this principle. Ultra-orthodox Jews believe (and routinely say) that their version of Judaism is not simply different from the practices of other Israelis (including other observant Jews, secular Jews, and non-Jews) but better in the sense that they are being more Jewish. Thus, as I note in the column, it is not uncommon to hear ultra-orthodox Jews claim that they are contributing to the national defense by praying and studying--and therefore ensuring Divine protection. In a political system in which a small but well organized coherent bloc can exercise considerable power by focusing on a small number of issues, it's not outlandish to suppose that the ultra-orthodox exemption incorporates that view of non-ultra-orthodox Israelis as inferior. The exemption thus could be said to connote the second-class citizenship of non-ultra-orthodox Israelis.
I'm not saying that the Israeli Supreme Court in fact found the exemption's social meaning to be the inferiority of the non-ultra-orthodox majority. Nor am I saying that such a finding would be necessary to invalidate the exemption as disproportionate to its goals (the official basis for the ruling). What I am saying is that this case could be a rare example of a law that benefits a minority that also has the social meaning of the inferiority of the majority. (Rare, that is, in a genuine pluralist democracy. Such laws are common in countries without full suffrage. E.g., apartheid South Africa's race laws.)