By A.T. Jordan
Associate Editor, Vol. 21
Contributing Editor, Vol. 22
In this Comment I hope to articulate how and why the line of cases culminating in Obergefell v. Hodges can be helpful in challenging racial profiling. What Obergefell provides is a third way of thinking about discrimination, rooted neither in discriminatory intent or purpose, nor in mere disparate effects. Instead, Obergefell renders unlawful certain kinds of expressive dignitary harms. In brief, the Court’s willingness to hold certain expressive dignitary harms to be unconstitutional can provide a way forward for those of us who are worried about racial profiling, because expressive dignitary harms do not depend on intentional or purposeful discrimination. Or so I shall argue.
In section one of this Comment, I briefly lay out a number of Supreme Court cases that have made it hard, if not impossible, to challenge racial profiling. This treatment is all too brief, and interested readers should look to Michelle Alexander’s The New Jim Crow for a more thorough account. In the second section, I lay out the expressive dignitary harms account that emerges in Obergefell. I then explain why this account, properly understood, avoids the purposeful discrimination requirement upon which attempts to challenge racial profiling might otherwise founder. In the third section, I consider and respond to a number of objections to the argument put forth in section two.
Section One: The Purposeful Discrimination Requirement
For the purposes of this Comment, I take it as a given that police stops have a disproportionate negative effect on racial minorities. Unfortunately, under current Supreme Court jurisprudence a mere disproportionate negative effect is not enough to ground a constitutionally cognizable claim against the Government. In Washington v. Davis, the two plaintiffs were turned down for employment opportunities with the Washington D.C. police force on the basis of results of a test administered by the department. They challenged the hiring procedures on grounds that they were racially discriminatory, as African Americans disproportionately failed the test. The Court held that mere “differential impact” was insufficient to ground a constitutional claim. Instead, plaintiffs would have to show discriminatory purpose. The Court has gone on to endorse a discriminatory purpose requirement in subsequent cases dealing with racial discrimination.
Showing a discriminatory purpose presents a difficult challenge as compared to merely showing a disparate impact. The latter can be shown by social scientists looking over data. The former requires access to information that is often hidden and difficult to uncover. While this hurdle for opponents of racial profiling was already high enough, the Supreme Court has erected further barriers to accessing the very information that would be needed in order to meet the discriminatory purpose test. In U.S. v. Armstrong the defendant sought to challenge his incarceration on a drug charge, on grounds that he was selected for prosecution because of his race. The Court held that he should be denied discovery unless he could provide evidence showing that the Government refused to prosecute similarly situated individuals of other races. But, of course, this is not something the petitioner could hope to show without access to discovery. As a result, a party trying to claim Fourteenth Amendment protections not only faces the higher burden of having to show discriminatory purpose, she may also face further barriers limiting her access to the information that she would need in order to demonstrate that purpose.
Section Two: Obergefell and Expressive Dignitary Harms
It is sometimes claimed that we can raise moral objections to certain racialized acts on grounds that the acts express a message of racial inferiority. This observation has been made by Stephanie Patridge with regard to playing video games with certain racial imagery and Deborah Hellman with regard to racial profiling and the Supreme Court’s equal protection jurisprudence. A similar line of thought seems to be emerging in the series of Supreme Court cases dealing with homosexual rights—Lawrence v. Texas, U.S. v. Windsor, and most recently, Obergefell v. Hodges. This trio of decisions is characterized by a concern for the stigmatizing dignitary harms that follow from state-imposed limitations on homosexual rights. As the Court said in Obergefell, “laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”
The concern for stigmatizing dignitary harms that emerges in Obergefell also has purchase in the context of racial profiling. Indeed, some of the most promising accounts of why racial profiling is wrong look to the expressive dignitary harm of racial profiling. For instance, Deborah Hellman argues that racial profiling feeds into social stereotypes of blacks as criminals. As such, it carries with it the message, not just that blacks are statistically more likely to commit crimes, but rather, that by virtue of their race they are naturally disposed toward criminality. Similarly, Paul Bou-Habib defends what he calls a “humiliation-based” account, according to which “individuals who are subjected to racial profiling in a context of background injustice are placed in a situation in which they cannot prevent appearing to onlookers in a demeaning way.”
Why does this line of reasoning help those who would seek to challenge racial profiling in court? It helps because the expressive content of an act, and the associated dignitary harm, do not depend on the intentions of the actor. Sometimes an act or utterance can carry with it content that is not intended by the actor or speaker. For example, if a person tells a racist joke, the joke carries with it an implicit message of racial derogation, independently of the intentions of the joke teller. This should be plain, insofar as we reject the telling of racist jokes without inquiring into the teller’s intentions. If a person from a different culture—one less fluent with the language, say—were to innocently tell such a joke, we might still caution against the telling on grounds that jokes like that express something the agent might not intend to express. Indeed, it is a general feature of our communicative acts that the messages they express do not depend on the intentions of the person performing the act. The meaning of our acts is public. If I am driving down the road and raise my middle finger at the person in front of me, the message expressed is clear. One need not pry into my intentions or purposes. Indeed, if my intentions do not match the expressive content of the act, then I am miscommunicating by expressing a message that I do not intend to express.
The clear upshot of this line of argument is that the decisions in Obergefell, Windsor, and Lawrence provide a third way to establish a Fourteenth Amendment violation that does not depend on establishing intent. Rather, the court simply has to assess whether the actual acts of the government express a demeaning message about members of a certain racial group. In the context of radically disproportionate targeting of minorities for police searches, police searches plausibly carry a demeaning message about minorities. Of course, more must be said about how, exactly, we fix the content of an expressive act. A searching inquiry into this issue would take me far beyond the scope of this Comment. For present purposes, though, it is enough to note that whatever the expressive content of an act is, it is not determined by the subjective intentions of the actor. Hence, if we take seriously the idea that the constitution protects us from certain expressive dignitary harms, we will have a basis for establishing a constitutional violation without a showing of discriminatory intent.
Section Three: Objections and Replies
One might worry that the line of cases culminating in Obergefell is not as helpful as I am suggesting. Obergefell addressed intentional discrimination, and as such, it falls squarely within the Court’s established equal protection jurisprudence. For that reason, one might object that there is no need to extend the Court’s holding so as to cover cases where there was no showing of intentional discrimination. Admittedly, Obergefell addressed activities that intentionally limited the access of homosexuals to the legal rights associated with marriage. Still, if we take the rationale presented in Obergefell seriously—namely that the gay marriage bans constituted an unlawful expressive dignitary harm—then intentional discrimination is not essential to the wrong the Court sought to address.
Nevertheless, an opponent of this extension of Obergefell may claim that the Court wants to limit itself to instances of dignitary harms that also involve intentional discrimination. Such a limit might seem unmotivated, though, unless there is a reason to privilege intentional discrimination over non-intentional discrimination. As I see it, there are two possible lines of objection to my proposed extension of Obergefell. First, one might claim that there is an additional harm associated with intentional discrimination, and that this is what the Court ultimately cares to address. Second, one might claim that the Court isn’t really concerned about the harm associated with the expressive act, but rather with condemning the pernicious qualities of the actor. In the remainder of this section, I will consider each possibility in turn.
Is there a peculiar harm associated with intentional discrimination, as such, which might warrant a refusal to extend Obergefell to the issue of racial profiling? One possibility is that intentional discrimination is either an independent dignitary harm, or amplifies the existing dignitary harm associated with the content expressed in the putatively harmful act. There may be something to this line of thought. After all, learning that someone intended to express a pernicious negative stereotype—rather than having done so carelessly, say—does add to the insult of the action. But, it is unclear that this sort of objection will do. Dignitary harms come in degrees. Being ignored is less of a dignitary harm than being spit upon. And, there is little reason to think that if intent adds to the dignitary harm it will do so in such a manner as to guarantee that the intentional dignitary harms are always worse than non-intentional. To insist that only dignitary harms accompanied by intentional discrimination can ground legally cognizable claims would put the Court in the somewhat odd position of countenancing some dignitary harms, while ignoring even worse dignitary harms. This is a result that should be avoided if at all possible.
Another possibility would be to claim that there is a kind of additional harm that arises from intentional discrimination, which is not merely a dignitary harm. It is hard to see, though, what that harm could be, which could not also come about via non-intentional state action, especially state action which expresses a pernicious message. The effects of our actions do not always track the intentions that motivate them. Good intentions can yield bad effects, and the worst of intentions can sometimes turn out for the best. Barring some account of how intentional discrimination results in distinctive harms that don’t arise from other acts which (unintentionally) express pernicious messages, this sort of objection seems like a non-starter. Still, I have not shown that there is not some account available, and those who would seek to limit Obergefell might try to articulate some such account. Nevertheless, this line of objection would have to explain why it would be reasonable for the Court to be concerned only with dignitary harms that arise in conjunction with the hypothesized non-dignitary harms attendant to intentional discrimination.
This brings me to the second line of objection. Perhaps the Court ultimately seeks to express condemnation of the bad intentions of those who intentionally discriminate. There are two things to say about this line of thought. First, it is hard to see why this should matter if what we are concerned with is the interests of the victims of the harm. An actor may have bad intentions, and maybe this is a reason to punish her, or at the very least, to think badly of her. But, this is a completely different issue from that of protecting the rights or interests of certain marginalized groups. It is one thing to ask whether a state actor is a worse person because of her intentions. It is an entirely different thing to ask whether those harmed by state action have their interests violated in a way that we ought to recognize under our law. And, the key point is that there simply is no correlation between the answers we give to these two questions. A completely powerless and ineffectual person condemned by society may have the most pernicious intentions imaginable, and maybe she should be punished for these pernicious attitudes. But, such a person can hardly be thought to thereby pose a serious threat to the interest of the group that is the target of her hostility. Rather, such persons can simply be laughed off as a side show. But, a powerful person, esteemed by society, may unintentionally express pernicious attitudes that do run counter to the interests of certain groups. In such a case, maybe we do not think this person is as morally condemnable as another with more virulent beliefs and motives. Still, this has little bearing on the degree to which another person’s rights or interests have been affected by her acts. Second, and perhaps more important, though, the Obergefell Court seems to be at pains to not express condemnation of those who would seek to preserve the so-called “traditional” conception of marriage, describing such individuals as acting in “good faith,” and as “reasonable” and “sincere.” These are hardly terms of condemnation that we would expect to find in a decision that aimed at expressing condemnation of intentional discrimination.
What Obergefell provides is a third way. No longer are we stuck with just two possibilities: intentional discrimination on the one hand, and disparate effects on the other. Instead, we can now look to the question of whether the Government’s action expresses a pernicious message that we want to legally condemn. This is a third way, because not all acts resulting in disparate impacts will express pernicious messages, but some unintentional acts will do so.
 135 S.Ct. 2584 (2015). Other cases in this line include Lawrence v. Texas, 539 U.S. 558 (2003) and U.S. v. Windsor, 133 S.Ct. 2675 (2013).
 See, e.g., Obergefell at 2608 (“They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”); see also Lawrence at 574 (“choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment”), quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 852 (1992).
 Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010). See especially chapter 3.
 For a more systematic account of the disproportionate effect of police stops, look to Michelle Alexander’s The New Jim Crow, especially chapter 3. See id.
 Washington v. Davis, 426 U.S. 229 (1976).
 Id. at 238-39.
 See, e.g., McClesky v. Kemp, 481 U.S. 279 (1987) (holding that a robust statistical showing of disparate death penalty sentencing did not establish a Fourteenth Amendment violation without evidence of discriminatory purpose).
 See, e.g., U.S. v. Armstrong, 517 U.S. 456 (1996).
 Id. at 456.
 See Stephanie Patridge, The Incorrigible Social Meaning of Video Game Imagery, Ethics and Information Technology 303 (2011).
 See generally, Deborah Hellman, The Expressive Dimension of Equal Protection, MINN. Univ. l. Rev. 85 (1) 1-70 (2000). See also Deborah Hellman, Racial Profiling and the Meaning of Racial Categories, Contemporary Debates in Applied Ethics 232 (Andrew Cohen & Christopher Wellman eds., 2nd ed. 2014). For another extended account of the expressive content of certain legal doctrines, see also Elizabeth Anderson & Richard Pildes, Expressive Theories of Law: A General Restatement, Univ. of Penn. L. Rev. 145, 1503-75 (2000).
 539 U.S. 558 (2003).
 133 S.Ct. 2675 (2013).
 135 S.Ct. 2584 (2015).
 Id. at 2602.
 See Hellman, supra note 8, at 238.
 Paul Bou-Habib, Racial Profiling and Background Injustice, J. Ethics 15, 33-46 (2011).
 See Patridge, supra note 7. See also Luvell Anderson, Racist Humor, Philosophy Compass (forthcoming).
 Obergefell, 135 S.Ct. at 2594.