Preliminary thoughts on possible constitutional flaws in SB 403, a California proposal to ban caste discrimination (2023)

In the following section, I provide some early reactions to a bill approved by the California Senate Judiciary Committee last month that has sparked controversy, particularly in parts of the South Asian community in the Golden State.SB 403, introduced by State Senator Aisha Wahab (a Democrat representing portions of the San Francisco-Oakland-San Jose Bay Area), aims to add "caste" to the list of prohibited bases on which individuals and organizations in the state may exercise the Discrimination is prohibited in areas such as public accommodation, housing, employment and education. (When SB 403 becomes enacted, it appears to be the first state-level law to prohibit caste discrimination.) The list (of prohibited grounds of discrimination) to which “caste” is proposed to be added in various laws that already include gender, Gender, gender identity, gender expression, race, color, religion, ancestry, national origin, physical disability, intellectual disability, health status, genetic information, marital status, sexual orientation, citizenship, primary language and reproductive health decision-making, military and veteran status, and immigration status .

The text of the bill (in Section 1) ​​provides in the relevant part:

"Caste" refers to a person's perceived position in a system of social stratification based on inherited status. A system of social stratification based on inherited status may be characterized by factors that may include, but are not limited to, an inability or limited ability to change inherited status; socially enforced restrictions on marriage, private and public segregation and discrimination; and social exclusion based on perceived status.

The findings of the bill (which are also included in the text of Section 1 of the bill) further state:

Caste discrimination is prevalent throughout South Asia and the South Asian diaspora, as well as around the world. While caste systems are strongly associated with South Asia, similar systems exist in regions including, but not limited to, South America, Asia, and Africa. Caste discrimination also occurs in all religious communities.

Since “caste” means a system of social stratification based on inherited status, wouldn't caste discrimination already be prohibited by provisions prohibiting discrimination on the basis of “descent” or other prohibited grounds? According to SB 403 itself, the answer is yes. Section 1 of the bill states:

The changes in this law serve to clarify and clarify the existing law. Nothing in this Act shall be construed to mean that caste discrimination is not already prohibited under applicable law, including by protecting religion, ancestry, national origin, ethnicity, race, color or other protected characteristics under applicable law.

Thus, as SB 403 is written, the inclusion of "caste" does not materially change what is and is not prohibited. Why, then, is this legislative change being proposed? Again, the text of Section 1 of SB 403 itself provides an answer:

Caste is now inseparable from existing legal protections in state and provincial civil rights laws, so that discrimination based on one's caste is effectively discrimination based on the overlap of other protected identities. However, because of the severe discrimination caste-oppressed Californians face, these existing protections must be explicitly stated.

So SB 403 appears to be a proposed piece of legislation that doesn't really change the regulatory scope of existing law, but which some people believe will provide helpful certainty. Certainly a state is generally permitted (except in situations such as marriage, which would imply a federal substantive right to due process) to prohibit private discriminatory acts based on inherited social status, whether such prohibitions interfere with these bans overlap or even repeat existing bans. So what's up with SB 403? Some in the South Asian community are angry because they feel the proposal is offensively unnecessary and that the bill, as written, targets, stereotypes and denigrates them on the basis of their racial or ethnic identity. Are these complaints valid under the Fourteenth Amendment's equal treatment clause? (I limit my analysis here to possible claims under the federal Constitution that might be made assuming SB 403 would become operative in its current form, although the California Constitution might offer similar and even stronger grounds for attack.) The answer is : potentially, given how the bill is currently designed. let's dive in

Under federal equality doctrine, laws are subject to, and almost always will (outside the context of affirmative action—and perhaps within that context once the Supreme Court decides the pending Harvard and University of North Carolina admissions cases) rigorous scrutiny shall be void if they distinguish between persons on their face based on their race or ethnicity. Does SB 403, as currently proposed, achieve this? It depends how you look at things. On the one hand, there is language in SB 403 that purports to make caste (i.e., discrimination based on inherited social status) discrimination by all persons illegal, not just South Asians or other people of color. Therefore, discrimination against a white person based on another person's caste would be prohibited. That is, if a white person were to discriminate against another person of any color based on that second person's inherited social status (e.g., discrimination against a member of the "Nouveau Riche" by a "Boston Brahmin"), there would presumably be a violation of that Law. So far it looks face neutral.

But when we delve into the gloss on the definition of caste in the legal text, South Asian communities seem to be singled out, at least suggesting the possibility that caste discrimination itself is something that, by definition, can only be practiced by people from that particular ethnicity. Caste discrimination (presumably in the spirit of the draft law), we learn from the text of the law, is present in "South Asia and the South Asian diaspora". "SimilarSystems,” the text teaches, also exist in other parts of the world. But a "similar" system is, by definition, arguablenot himselfa "caste" system and therefore would not fall under the prohibitions of SB 403. (Note also that such "similar" systems, which are themselves mentioned, appear to be limited to parts of the world also populated by people of color - no mention is made of caste or even caste-like systems in Europe or North America, though Titles are used. The rule of nobility and other Western social systems is also based on inherited social status.)

Certainly there are some additional language in the bill that appear to be generally applicable - the term "including[] but not limited to[]" and the reference to "as well as throughout the world". Does this generality protect the law from skepticism about equality protections? I'm not sure. First, note (again) that apart from the colored continents (South America, Asia, and Africa), no parts of the world are mentioned, although caste systems—if defined broadly as systems based on inherited status—certainly work in Europe and North America .

In general, however, I am not sure that a text that creates an overarching generality will save a law that inevitably and unnecessarily also addresses specific racial groups. Consider the following hypothetical statute:

It shall be unlawful for black employers and all other employers to [do X].

Such a law does not applyregulatoryTreat Black employers differently from other employers as “all” employers are prohibited from engaging in the prohibited conduct. But the specific, selective, and gratuitous textual mention of black employers would very likely trigger rigorous scrutiny and invalidate the statute, since the stigmatic messages against black employers emanating from the hypothetical statute represent an important type of violation involving the non-discrimination clause was designed for prevention. That said, the lyrical non-neutrality would raise strong suspicions that the legislature wanted to criticize (and thereby demean) black employers in particular, and that the burdens imposed on all other employers amount merely (or at least largely) to collateral harm. This would be the case, in particular, if the prohibited employer practice in question were particularly common among black employers or almost exclusively among them.

And it would remain true even if that were claimedbeneficiariesof the law were also predominantly black (employees), for example within the framework of colorism. Again, the fact that the text of SB 403 is purported to help some South Asians (victims of caste discrimination), while appearing to belittle others, does not necessarily save the law, since in each case the particular concern for an ethnic group raises doubts about whether all persons are treated equally or protected. (Imagine a law that says it's illegal to discriminate against Hispanics on the basis of race, but leaves its provisions free for anyone to discriminate against non-Hispanic Americans on the basis of race.)

Thus, if SB 403's selective emphasis on South Asian (and Asian, African, and South American) - but not European or North American - cultures would be textually problematic for a reviewing tribunal (which is at least a distinct possibility), then the presence of a few generalizing phrases would suffice may not be enough to solve the problem.

Furthermore, non-neutrality of face is not the only way to place a law under equal protection. Even seemingly neutral laws are invalid if they have unequal or differential impacts on racial or ethnic boundaries.Andare motivated by a desire to hurt or demean a particular racial or ethnic group. While it is generally quite difficult to prove an underhand motive, can it be proven for SB 403 in its current form? Again, I think the answer is possibly yes. Start with the fact that the proposal is admittedly merely a clarification of pre-existing laws (e.g. a more neutral ban on all discrimination based on descent). The tenuous educational motive for the passage of the law raises the possibility that the bill will target and condemn certain communities with which the word "caste" is deeply (and stereotypically) associated. And the evidence contained in the text of SB 403, which problematically does not comprehensively indicate where castes currently exist, only reinforces the likelihood of such a motive. In fact, an earlier version of the bill (and legislative history is of great importance in examining inadmissible motives) contained language that problematically made the South Asian population (perpetrators and victims) even more explicit:

Caste-oppressed people in California hailing from South Asia including India, Nepal, Sri Lanka, Bangladesh and Pakistan are known by the self-chosen identity "Dalits", meaning "the broken but resilient". Other caste-oppressed indigenous peoples are called "Adivasis" or their [South Asian] tribal names.

The bottom line is that SB 403, while possibly well-intentioned, in its current form seems rushed and inartistically designed. If I were trying to improve the chances that the bill (once it went into effect) survives judicial review, I would recommend a revision of the wording to soften the particular focus on South Asian or communities of color and the statutory caste determinations clearly reflect the fact that while caste may be paradigmatically linked to the history and culture of South Asia, the concept of caste defined in the law is practiced by individuals of all races in all parts of the world and is independently prohibited by the bill whoever is using the caste to discriminate against whoever.

I would also soften the wording that the bill is merely declaratory and clarifying in nature; Instead, I would suggest wording that says the bill may have an impactlargelydeclarative and clarifying (and I want to keep the wording that the bill should not be construed to mean that specific cases of caste discrimination are not already covered by existing laws), but leave open the possibility that the bill may apply where it is there is no existing law.

Given the legislative history to date, all of this may still not prevent the bill from being challenged on illegal grounds, but the procedural steps in the legislative process should focus on at least smoothing out the wording of the bill. (In that regard, the Senate Judiciary Committee's review was a missed opportunity.) This sort of smoothing process ultimately salvaged the so-called Muslim ban by the Trump administration and California lawmakers, who believe SB 403 is an advantage the idea should try to learn from this episode. Of course, the US Supreme Court has deferred a presidential administration in the UStravel ban casemuch more than any court is likely to leave to the California legislature, but changing the wording of SB 403 in the direction I suggest could make a difference.

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