Paul L. Caron

Friday, July 9, 2010

More on Does the New 10% Tanning Tax Discriminate Against Whites?

Following up on my previous post, Does New 10% Tanning Tax Discriminate Against Whites? (Mar. 25, 2010):  Frank Pasquale (Seton Hall), Disparate Impact and the Tanning Tax:

Washington Post, 'Tan Tax' Discussions Include Allegations of Reverse 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."

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This is a belated April Fools Day joke, right?

Hypothetically (or fantastically), Equal Protection Clause jurisprudence instructs that the tanning tax be subject, at most, to strict scrutiny. Behind the tax there must be a compelling state purpose in taxing patrons of tanning salons, and a determination that the tax is narrowly tailored to achieve that purpose.

So what of the fact that white folks, otherwise inclined to be tanning salon patrons, can just go stroll around in the sunshine and, absolutely free of charge, get what the tanning tax supposedly takes away? Not a very burdensome tax after all.

Seems rather silly. More interesting, perhaps, is the possibility that an editor on a mass media law blog (e.g., AmLaw, the WSJ, etc.) secretly planted this subject on the hallowed TaxProf Blog as a joke.

Posted by: Jake | Jul 9, 2010 7:30:43 PM