The greatest danger of applying strict scrutiny to explicitly discriminatory laws but rational basis to facially neutral laws, even when a disproportionate impact on suspect classes is shown, is that it obscures many modern manifestations of racism.

In I'm Not a Racist But ... Lawrence Blum describes three major categories of racism: Personal, social or socio-cultural, and institutional. Personal racism, as the name suggests, exists at the level of the individual. It is defined as racist acts, beliefs, attitudes, and behavior on the part of individual persons.

Social or socio-cultural racism comprises racist beliefs, attitudes, and stereotypes widely shared within a given population and expressed in cultural and social modes such as religion, popular entertainment, advertisements, and other media.

Finally, institutional racism refers to racial inferiorizing or antipathy perpetuated by specific social institutions such as schools, corporations, hospitals, or the criminal justice system as a totality. Institutional racism can be broken down further into two manifestations: intentionally racist institutional policies or practices, or, if the institution has no official or intentional policy of racism or racial discrimination ... the actual functioning of the institution involves racism or racial discrimination.

This second manifestation of institutional racism--racism that is not vocalized but exists in the institution's actual functioning--is precisely the type that escapes scrutiny under the ideology of colorblind constitutionalism and its unskeptical treatment of facially neutral laws.