Does Equal Protection Violate the Equal Protection Clause?

A three-judge panel for the U.S. Court of Appeals for the Sixth Circuit this month struck down Michigan’s ban on government discrimination and preference on the basis of race, ethnicity, and sex because, it says, the ban violates the Equal Protection Clause of the U.S. Constitution.

You can’t make this stuff up, folks. That’s right: The people of Michigan, according to this court, violated the Equal Protection Clause when they demanded that their state treat all citizens equally—without regard to race, ethnicity, or sex—in government contracting, employment, and education, including university admissions. Unbelievable.

The good news is that I cannot imagine the decision will stand. The panel was divided 2–1, and the Republican appointees on the full Sixth Circuit outnumber the Democratic appointees 10–5. It’s more complicated than just counting the R’s and D’s, since some of the former are not great, and some of the latter might balk at this particular decision. But the point is that we have another bite at the apple, and the Michigan state attorney general has announced he will ask the full court to take the case. And then there’s the Supreme Court.

Still, an appalling decision.

* * *

The fact is that it is simply untenable for our nation not to ban government discrimination on the basis of skin color and what country someone’s ancestors came from.

To see why, just take a look at the “National Population” census chart here.

It shows that America is more and more a multiracial and multiethnic country. Over one in four Americans now say they are something other than simply “white.” Blacks are no longer the largest minority group: Latinos are.

And blacks and whites are the slowest growing populations. Since the last census, the Latino population has grown by 43.0 percent, and the Asian population has grown even faster: by 43.3 percent. The black population has grown by only 12.3 percent, and the white population by only 5.7 percent.

And it’s interesting that the number of Americans who identify themselves as belonging to “two or more races” has grown by 32.0 percent. That doesn’t even count those Americans, like our president, who are multiracial but for whatever reason declined to identify themselves in that way on the census form.

In such a country, as I said, it is simply untenable for the government to classify and sort people on the basis of skin color and national origin, and to treat its citizens differently—some better, some worse—depending on which silly little box is checked.

In a country like ours, the only system that will work is one where the government plays no favorites. Anything else is a recipe for disaster—for division, strife, and balkanization.

* * *

The Center for Equal Opportunity is, needless to say, in the thick of this fight—and we’ll remain there. On the day that the Sixth Circuit’s decision came down, we joined a brief in the Ninth Circuit urging it to reject arguments that court there strike down California’s anti-racial-preference provision, too. (And a Ninth Circuit ruling would lead to challenges to Arizona’s and Washington State’s similar laws as well.)

And CEO will be joining a brief urging the full Sixth Circuit to overturn the Sixth Circuit panel’s decision.

And, if that fails, the Center for Equal Opportunity will urge the Supreme Court to take the case.

The law should protect all Americans from racial discrimination, and it is absurd to turn the Constitution on its head and say that a law like that violates equal protection. It’s as simple as that.

Related posts: