Briefing is now complete in the case Corboy v. Louie, a case that will hopefully result in the invalidation of a race-based property tax scheme in Hawaii. The Supreme Court will decide on June 21st whether to review the Hawaii Supreme Court’s decision that tossed out a challenge to the discriminatory tax law. PLF’s brief in support of review is here.
It’s sad, but true. Hawaii offers a property tax exemption to certain homestead property lease holders, but only to those who are “Native Hawaiian.” That means the exemption is available to “any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778.” But if you’re the wrong race, then you don’t get the homestead property, or the tax exemption. Not only that, according to the courts in Hawaii, you can’t even challenge the 1920s law!
In Corboy, the Hawaii Supreme Court dismissed a challenge to the unequal tax structure by non-Native Hawaiians, because they didn’t actually go through the process of applying for the homestead property leases. But applying for those leases would have been pointless. Why? Because federal law – enshrined in the Hawaii Constitution no less – specifically states that the leases are available only to Native Hawaiians. The federal government agreed that the challengers lacked standing, and, in a brief filed by the U.S. Solicitor General, the government contends the Court should not even bother with the equal protection claim. After all, the Solicitor General argues, sometime between now and eternity all native Hawaiians might “reorganize as a sovereign government” with the State’s blessings. As long as that might happen, any challenge to the race-based tax scheme is “premature.”
The Supreme Court holds that government racial classifications, regardless of the motivation behind them, are presumptively unconstitutional, invalid, and can be upheld only upon an extraordinary justification. The people of Hawaii have been subjected to racial classifications by the federal government, and now by the state of Hawaii, for the last ninety years. It is time for the Court to review those racial classifications under strict judicial scrutiny.