Seattle’s ban on caste-based discrimination was affirmed by a constitutional in US court through an order passed on March 8 rejecting claims that it violated both the US First and Fourteenth amendments. The upholding of the Seattle ban against caste-discrimination bodes well for the expansion of such bans to other US cities and states.
In its order, the court directly addressed the question of whether caste discrimination bans are facially neutral and categorically held that they are. The court also addressed whether such a caste-discrimination ban is, at all, an infringement on Hindu religious practices (this is an argument made by some Hindu nationalist groups). The court significantly that they were not an infringement.
Taking this further (whether caste-discrimination bans in any way discriminate against any religious group or otherwise violate the Establishment Clause), the Court held that they do not. What is important to note is the fact that while caste and religion do, sometimes, intersect, this does not mean that casteism cannot be regulated. The United States District Judge, Richard A Jones passed the order on March 8, 2024.
On February 21, 2023, the Seattle City Council voted to approve Council Bill (CB) 120511 “relating to human rights; including protections against discrimination based on an individual’s caste.”[1]
The plaintiff, one Bagal, in this matter (petitioner) is a resident of North Carolina who has lived in Seattle since 1985 and he filed this legal challenge of May 11, 2023. He challenged the Seattle Council’s decision to expand its anti-discrimination laws by adding “caste” as a protected class.
It was right-wing Hindutva nationalists (read supremacists)that have been at the forefront of the pro-caste push in the US; first actively opposing the #Equality Lab’s push in Seattle and through such legal challenges. This is a huge setback for them it is also a positive encouragement to Dalit and human rights groups who have been challenging the brutality of caste exclusion through rationality and morality, combined.
The eight-page judgement dismisses the plaintiff Bagal’s case on several counts not least being that the “injuries” envisaged by him are purely hypothetical. On examination before the court was whether the plaintiff in anyway suffered an injury that is concrete, particularised, and actual and imminent; that such an injury was caused by the defendant (in this case the Seattle City Council) and that such an injury would be addressed by judicial relief.
The judgement is succinctly argued citing precedents.
First Amendment Standing
First, Plaintiff argued that incorporating “caste” into existing anti-discrimination laws ipso facto creates a stigma, levelled towards a specific and insular minority group, namely members of the Hindu religion. That stigmatization, Plaintiff reasons, violates the First Amendment’s command that no laws should exist “respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” [2]
The Plaintiff premises their Free Exercise Clause and Establishment Clause standing on the theory that the word “caste” produces a cognisable injury consisting of prejudice towards the Hindu religion and members thereof.2 Unsurprisingly, Plaintiff’s alleged injuries pattern this distinction.
The Court examined the prima facie burden of proof in free exercise cases which is upon a plaintiff to demonstrate that such a ban is, in fact, “burden upon religion.
Citing judgements like School Dist. of Abington v. Schempp, 374 U.S. 203, 223 (1963), the Court notes that free exercise jurisprudence draws a distinction between those governmental actions that actually burden the exercise of religion, and those that result in the mere exposure to outlooks at odds with the internal perspectives of a religion.[3]
Relying on several other precedents including see also Grove v. Mead Sch. Dist. No. 354, 753 F.3d 1528, 1543 (9th Cir. 1985) (Canby, J., concurring) the District US Court, on March 8, held that (“Governmental actions that merely offend or cast doubt on religious beliefs do not on that account violate free exercise.”)
“An actual burden on the profession or exercise of religion is required.” Here, the Plaintiff fails to make this prima facie showing. Indeed, Plaintiff simply does not allege they are burdened, in any manner, from practicing their faith. Furthermore, the plain text of the Ordinance does not lend itself to such an interpretation.[4]
The Court also after substantial examination holds that the facts on record do not in any way point to cognizable injury under the Free Exercise Clause. Therefore, having failed to allege a cognizable injury, the Plaintiff is held to lack any de facto standing to assert a Free Exercise challenge to the Caste Discrimination Ordinance.’
Interrelationship between the Establishment Clause & Free Exercise Clause: US
The interrelationship of the Establishment Clause and the Free Exercise Clause was first touched upon in Cantwell v. State of Conn., 310 U.S. 296 (1940). The judgement asserts that, “the [First] Amendment embraces two concepts: freedom to believe and freedom to act.”
In this case, unsurprisingly, Plaintiff’s had also alleged “injuries.”
Dealing with this aspect further and citing Grove v. Mead Sch. Dist. No. 354, 753 F.3d 1528, 1543 (9th Cir. 1985), the March 8 judgement quotes, (“Governmental actions that merely offend or cast doubt on religious beliefs do not on that account violate free exercise. An actual burden on the profession or exercise of religion is required.”).
In conclusion, the Court holds that the plaintiff fails to make the case for any prima facie infringement.
Similarly further examining the plaintiff’s Establishment Clause claim, the Judgement deals with this and then unravels it.
“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”[5]
Fundamentally, Plaintiff’s reasoning is that the City of Seattle’s involvement on an issue of equal importance to practitioners of a certain religion becomes, as a consequence, activity in favour or opposition to that religion. And that, because the City of Seattle opted to disfavour caste-based forms of discrimination, a fortiori it condemned all notions of caste as it was understood by any religion.
The Court dismisses this argument stating that “this logic proves too much…”
“And even assuming, arguendo, that the Ordinance does condemn notions of caste as is believed by a certain religion that does not constitute activity in support or disparagement of that religion. For instance, birth control is a topic that involves both religious beliefs and general welfare concerns. And yet, no court has ever held that government approval of birth control violates the Establishment Clause.”
“To the contrary. The Supreme Court summarily rejected an argument that the limiting of Medicaid funds for abortions violated the establishment clause “because it incorporates into law the doctrines of the Roman Catholic Church” [6]
“As the Court has reasoned, “although neither a State nor the Federal Government can constitutionally ‘pass laws which aid one religion, aid all religions, or prefer one religion over another,”[7], “it does not follow that a statute violates the Establishment Clause because it ‘happens to coincide or harmonize with the tenets of some or all religions.”[8]
“Similarly, this Court cannot conclude that the Ordinance is unconstitutional under the First Amendment simply because it coincides or otherwise conflicts with a religious tenet. It is not enough, in other words, that the anti-caste legislation strikes members of a religion as reflecting poorly on their religious beliefs.[9] In this case, the Ordinance’s principal effect is not to endorse a religion, but simply to bolster local anti-discrimination laws.[10] Any coincidental reference to a shared phenomenon (such as caste) is secondary, if not wholly, immaterial. Accordingly, the Plaintiff’s standing to assert a Free Exercise challenge to the Ordinance is rejected by the Court.
Arguments on the 14th Amendment
Thereafter the Court deals with another set of arguments in the plaint. The Plaintiff contends that the Ordinance violates the Equal Protection Clause of the Fourteenth Amendment because it “unfairly singles out and targets” and “treat[s] disparately people based on their ancestry, creed, national origin, and religion.”
“American civil rights jurisprudence is deeply familiar with notions of anti-caste legislation, and it would be anachronistic to suggest that modern anti-discrimination laws cannot rediscover these historical practices or that doing so necessarily refers to contemporary (religious) usages of the term Equal protection analysis focuses on whether the government has classified individuals on the basis of impermissible criteria.
“Governmental actions that classify persons by race or that are facially neutral but motivated by discriminatory racial purpose are subject to strict judicial scrutiny.[11] However, legislative classifications typically survive judicial scrutiny so long as they are rationally related to a legitimate governmental interest.[12]
“Under these guiding principles,” states the US District Court, “the Seattle City Ordinance easily avoids strict scrutiny.”
“Nowhere does the text of the Ordinance make use of prohibited classifications. Rather, the Ordinance is facially neutral and of general applicability. Moreover, wholly absent from Plaintiff’s complaint are any facts suggesting that the legislative drafters were actually motivated by racial or ethnic animus.
The judgement goes further. The Court states that nowhere does the Plaintiff’s complaint “plausibly allege that the City of Seattle has applied the Ordinance in a discriminatory manner.[13] Nor does it suggest any enforcement has occurred pursuant to the Ordinance.5
Anti-Caste Ordinance is Constitutional: US Court
“Finally, the Ordinance easily passes constitutional muster given its status as a legislative enactment which is rationally related to a legitimate governmental interest of preventing discrimination.[14]
This judgement cited holds that Title VII’s purpose to end discrimination is equally if not more compelling than other interests that have been held to justify legislation that burdened the exercise of religious convictions”[15]
Therefore, the Court also states that “It would work a great irony for an anti-discrimination Ordinance that is de jure subsumed within the current Equal Protection framework to be found unconstitutional under that same provision.
Given then that the Ordinance neither discriminates on its face nor runs afoul of the discriminatory impact and intent principles undergirding the Fourteenth Amendment, the Court needs only assess whether Plaintiff’s remaining argument is sufficient to confer any standing to the plaintiff.
During arguments the Plaintiff had argued that the very “spectre of enforcement under the Ordinance” is sufficient to lead to a “loss of reputation.” In this connection, the plaintiff re-emphasised his claimed First Amendment injury, namely that the Ordinance produces reputational harms.
The Court rejects these arguments stating that “abstract stigmatic injuries are insufficient to confer standing under the Fourteenth Amendment.”[16]
The injury of stigma confers standing “only to those persons who are personally denied equal treatment [by the challenged discriminatory conduct].”[17]
In conclusion, the Court holds decisively and fundamentally that the Fundamentally that the Plaintiff has failed to show a disparate impact or conduct motivated by racial or ethnic animus in the passage by the City of Seattle of the Anti-Caste Ordinance.
On facts, locus standi and first principles, the challenge by one Bagal to the Anti-Caste Ordinance was resoundingly rejected by the US District Judge Richard A. Jones on March 8, 2024.
This is one more step in a successful campaign by Indian American groups, Dalit groups and human rights groups to get a statute against Caste Discrimination in the US.
US Court order can be read here.
[1] On February 21, 2023, the Seattle City Council voted to approve Council Bill (CB) 120511 “relating to human rights; including protections against discrimination based on an individual’s caste. . .” Ordinance 126767 (“Ordinance”).
[2] The interrelationship of the Establishment Clause and the Free Exercise Clause was first touched upon in Cantwell v. State of Conn., 310 U.S. 296 (1940). According to the Court, “the [First] Amendment embraces two concepts: freedom to believe and freedom to act.” Id. at 303– 04
[3]Further citations include See Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 223 (1963) that held that “it is necessary in a free exercise case for one to show the coercive effect of the enactment as it operates against him in the practice of his religion.”
[4] The Ordinance makes it unlawful to discriminate based on caste: (1) in the workplace, (2) in places of public accommodation, (3) in landlord-tenant transactions; (4) in the use or enjoyment of public parks and in other facets of public life. Ordinance 126767.
[5] Larson v. Valente, 456 U.S. 228, 244 (1982).
[6] Harris v. McRae, 448 U.S. 297, 319 (1980).
[7] quoting Everson v. Board of Education, 330 U.S. 1, 15 (1947)
[8] quoting McGowan v. Maryland, 366 U.S. 420, 442 (1961)
[9] See Harris, 448 U.S. at 319.
[10] The anti-caste thrust of the Ordinance evokes the statement of John Marshall Harlan in Plessy v. Ferguson that there is no caste in the United States, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting), as well as statements by framers of the Fourteenth Amendment that the amendment was designed to prohibit practices that reduce groups to the position of a lower caste. See Cong. Globe, 39th Cong., 1st Sess. 674 (1866) (remarks of Senator Sumner) (the proposed amendment would abolish “oligarchy, aristocracy, caste, or monopoly with particular privileges and powers.”) American civil rights jurisprudence is deeply familiar with notions of anti-caste legislation, and it would be anachronistic to suggest that modern anti-discrimination laws cannot rediscover these historical practices or that doing so necessarily refers to contemporary (religious) usages of the term.
[11] See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 230, (1995); see also Washington v. Davis, 426 U.S. 229, 247 (1976) (describing the notion of a disparate impact from a facially neutral statute).
[12] (City of Cleburne v.Cleburne Living Ctr., 473 U.S. 432, 440 (1985)
[13] In addition, the Court notes that mere speculation does not suffice to render a matter justiciable under the Equal Protection Clause. See e.g., Citizens for Fair Representation v. Padilla, 815 F. App’x 120, 123 (9th Cir. 2020) (holding that the plaintiffs lacked standing to assert an Equal Protection claim because they made only speculative allegations regarding unknown future actions and failed to show a concrete harm based on race).
[14] See E.E.O.C. v. Fremont Christian Sch., 781 F.2d 1362, 1368 (9th Cir. 1986)
[15] (citing Braunfeld v. Brown, 366 U.S. 599, 606 (1961)); see also Witt v. Dep’t of Air Force, 527 F.3d 806, 817 (9th Cir. 2008)
[16] (Citations: See Allen v. Wright, 468 U.S. 737, 755 (1984); see also Kumar v. Koester, No. 2:22-cv-0755-RGK-MAA, 2023 WL 4781492, at *3 (C.D. Cal. 2023) (Hindu university professors lacked standing to assert an equal protection challenge to a university’s antidiscrimination policy when they merely alleged that the policy impermissibly stigmatized Hindu practitioners).
[17] Heckler v. Mathews, 465 U.S. 728, 739–40 (1984).
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