By N.C. Aizenman
Washington Post Staff Writer
Thursday, July 8, 2010; 5:18 PM
Mention the new "tan tax" in a major news outlet and cries of discrimination and reverse racism often follow.
The complaint surfaced on reader comment boards to blogs and news Web sites back in December, when it became clear that the levy -- a 10 percent surcharge on the use of ultraviolet tanning beds -- was likely to be included in the new health-care overhaul bill. Since then, it's been repeated by conservative commentators such as Rush Limbaugh and Doc Thompson, a fill-in host for Glenn Beck who intoned in March, "I now know the pain of racism."
When an article about the fallout from the tax -- which took effect last week -- appeared on the Washington Post's Web site Wednesday, dozens of commenters questioned the tax's legality.
The case can seem deceptively simple: Since patrons of tanning salons are almost exclusively white, the tax will be almost entirely paid by white people and, therefore, violates their constitutional right to equal protection under the law.
But does the argument have any merit? Not remotely said Randall Kennedy, a professor at Harvard Law School specializing in racial conflict and law.
"There is no constitutional problem at all, because a plaintiff would have to show that the government intended to disadvantage a particular group, not simply that the group is disadvantaged in effect," he said.
Kennedy said that this is why courts have upheld a raft of other laws that also happen to have a disproportionate impact on particular groups. For example, laws that impose higher penalties for possession or trafficking of crack cocaine as opposed to powder cocaine resulted in far harsher sentences for African Americans compared to whites. And laws that offer preferential treatment for veterans are much more likely to benefit men than women. But in both cases judges ruled that, because lawmakers did not intend to disadvantage black people or women when drafting those laws, they are legal.
What would it take to prove that President Obama or members of Congress intended to discriminate against white people when they included the tan tax in the health-care law? There would have to be some record of direct or indirect comments by the officials involved, Kennedy said. Or there would have to be no possible alternate reason for adopting the tan tax.
But the levy's supporters argued from the start that it had a dual purpose: to raise funds to cover some of the cost of extending health coverage to the uninsured and to discourage a habit that scientific studies have linked with increased risk of cancer.
"To say that this health rationale was a mere pretext for wanting to stick it to white people is completely implausible," Kennedy said.