The Hate Exclusion: Moral Tax Equity for Damages Received on Account of Race, Sex, or Sexual Orientation Discrimination

Abstract

Scholars on both sides of the reparations literature divide commonly contemplate some form of federal monetary outlay. At the same time, given both the absence of such an outlay and the dire prognosis that such largesse is forthcoming, tax scholars rarely contribute to traditional reparations literature. With this Article, Professor Dexter introduces the notion that reparations take the form of narrowly-tailored federal tax expenditures. Such an approach, he argues, presents fertile ground for the resolution of longstanding differences in the reparations debate. In addition to highlighting the various political and administrative merits of a tax expenditure approach to reparations, he argues that allowing the exclusion of damages received on account of specific forms of discrimination — even if suffered at the hands of a private actor — would offer immediate and precisely-targeted reparational relief not only to those suffering the modern day impact of slavery and race discrimination under federal imprimatur but also to those impacted by the United States’ well-documented history of hostility with respect to women and sexual minorities. Readily acknowledging that considerable progress has been made (often via the firm and necessarily-persistent hand of federal mandate), Professor Dexter presents current day-to-day events (including the conduct of certain law enforcement personnel and specific public officials openly hostile to marriage equality) as evidence of a lingering yet defiant, federally-sculpted, federally-nourished national psyche. The narrow tailoring of relief and the moral force of the unclean hands theory of exclusion, he reasons, neutralizes arguments advanced in traditional reparations literature regarding excessive act, wrongdoer, and victim attenuation.