The Constitutionality of Prohibiting Caste Discrimination

The problem of caste discrimination has come into sharp focus in the United States. In the last few years, there have been several high-profile allegations and cases of caste discrimination in employment and educational settings. As a result, organizations and institutions—including governmental entities—are taking action, including in updating their rules and regulations to explicitly prohibit discrimination based on caste and instituting enforcement actions against alleged caste discrimination. Most prominently, the City of Seattle became the first city to amend its local antidiscrimination ordinance to add caste as a protected category.In response to such government action, questions have arisen about the constitutionality of prohibiting caste discrimination. Principally, the arguments have been that recognizing caste discrimination violates the Establishment and Free Exercise Clauses of the First Amendment, because governmental entities demean religions, like Hinduism, in doing so. In this short Essay, I explain that governments can recognize and remedy caste discrimination consistent with the First Amendment. Remedying caste discrimination does not require disparaging any religion. Insofar as it is necessary in contextualizing and remedying instances of discrimination, governmental entities may reference religion, but as a constitutional matter they should refrain from unnecessarily disparaging religion. As with other forms of discrimination, our Constitution empowers the government to protect individuals against the effects of caste discrimination