[Glenn Greenwald] Appellate Court Strikes Down Racial and Gender Preferences in Biden's COVID Relief Law

A federal appellate court on Thursday invalidated the racial and gender preferences in President Biden's $1.9 trillion American Rescue Plan Act as unconstitutional. The Cincinnati-based Sixth Circuit of Appeals ruled that provisions of that law, designed to grant preferences to minority-owned small-restaurant owners for COVID relief, violate the 14th Amendment's guarantee of equal protection under the law:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The specific provision struck down was part of the law's $29 billion Restaurant Revitalization Fund grant program for small, privately owned restaurants struggling to meet payroll and rent due to the COVID crisis. The law, which was passed almost entirely by a party-line vote in March, grants priority status to restaurants that have 51% ownership or more composed of specific racial and ethnic groups as well as women. By effectively relegating struggling businesses owned by white males or ethnicities and nationalities excluded from a priority designation “to the back of the line,” the COVID relief program, ruled the court by a 2-1 decision, ran afoul of core constitutional guarantees.

The ruling is not only constitutionally significant in its own right but also vividly reflective of broader societal debates over how race and gender categories ought to be treated when set next to class. The parties to this case as well as the judges involved in the ruling themselves highlight the pervasive conflicts created by race and gender preferences.

The lawsuit was brought by Jake’s Bar and Grill, a restaurant jointly owned by Antonio Vitolo, who is white, and his wife, who is Hispanic. If Vitolo's wife owned more than 50% of the restaurant, then Jake’s Bar and Grill would be eligible to receive priority treatment for a grant, since her ethnicity qualifies as “socially and economically disadvantaged” under the law. But because she only owns 50% — her white husband owns the other half — the restaurant's application cannot be considered until the Small Business Administration (SBA) first processes all applications from restaurants entitled to priority status based on race and gender, as well as veteran status.