The Principle and Politics of Equal Value

Abstract

An unfamiliar equality principle is gaining prominence in constitutional discourse. Equal value presumptively prohibits government from regulating protected activities while exempting other activities to which the government’s interest applies just as readily. Although the principle is being developed in the context of free exercise, it has implications for other guarantees in constitutional law. This Article offers two arguments. First, a version of equal value holds real attraction, not only within religious freedom law but also in areas such as freedom of expression, reproductive rights, and equal protection. Second, however, the rule is operating in a patterned manner, favoring traditional religions at a moment when their social status is facing contestation and extending to decisions concerning free exercise and free speech but not nonestablishment, due process, or equal protection. That implementation promotes a problematic political program. If the account here is correct, then equal value promises not an antidote to excessive judicial deference, as some have hoped, but instead a controversial politics.

Keywords: free exercise, equal value, most favored nation, Tandon, first amendment