Joo on A Long Story: Queues, Dreadlocks, and Cycles in Civil Rights History

Thomas Wuil Joo, University of California Davis School of Law, has published A Long Story: Queues, Dreadlocks, and Cycles in Civil Rights History. Here is the abstract.

The conventional justification for the twentieth-century civil rights revolution is "political process theory," under which courts should scrutinize legislation if prejudice against minorities caused failures in the democratic process. Commentators have argued that Equal Protection law has since shifted from (1) enhanced protection of minorities to (2) formally equal, or "colorblind," protection of all racial groups and now, toward (3) greater protection against "reverse discrimination," despite the white majority's dominance of the political process. This progression is consistent with Derrick Bell's "interest convergence theory," which holds that law will advance minority civil rights only when it also serves majority interests. This Article argues that Fourteenth Amendment law followed a similar three-stage progression from protecting the weak to favoring the strong, and that the pattern pervades civil rights law. In the earliest Equal Protection cases, federal judges invoked the phrase "all persons" to extend protection to Chinese immigrants and, eventually, to white persons. This Article focuses on Ho Ah Kow v. Nunan (1872), which invalidated an ordinance requiring the cutting an incarcerated Chinese immigrant's hair despite its religious significance. Ho was part of the shift from (1) protecting African Americans to (2) protecting all persons to (3) protecting the economic rights of the wealthy under substantive due process, a.k.a. "Lochnerism." Ho further illustrates the cyclicality of civil rights law in its striking resemblance to cases, including one currently before the Supreme Court, involving prison rules requiring cutting the dreadlocks of incarcerated African-Americans in violation of their Rastafarian beliefs. 1 Unlike Ho, the dreadlocks cases are brought under religious discrimination law. The law has come to favor religious over racial claims. This contributes to stage three of Equal Protection law: reduced protection of racial minorities. Religion law itself also moves through the three stages, from protecting the weak to protecting all to protecting the politically influential. The Establishment Clause permits state-sanctioned Christian expression while Free Exercise is invoked to benefit Christians at the expense of a marginalized group, LGBTQ+ persons. The persistence of the three-part pattern does not prove its inevitability, but it does suggest it is a foreseeable result of advances in minority civil rights.

Download the article from SSRN at the link.