194 Pages Posted: 17 Aug 2012
Date Written: August 14, 2012
This article argues that state action that discriminates on the basis of religion is unconstitutional under the Equal Protection Doctrine even if it does not violate the Establishment Clause or the Free Exercise Clause as incorporated by the Fourteenth Amendment. State action that discriminates on the basis of religion should be subject to strict scrutiny and should almost always be held unconstitutional. We thus challenge the Supreme Court’s recent decision in Christian Legal Society v. Martinez in which a 5 to 4 majority of the Court wrongly allowed a California state school to discriminate against a Christian Legal Society chapter on the basis of religion. We defend our argument that the Fourteenth Amendment bans discrimination on the basis of religion as being: 1) consistent with and mandated by the original meaning of the Fourteenth Amendment; 2) as following logically from the seminal logic in United States v. Caroline Products Footnote Four which specifically mentions religion as a suspect classification; 3) as not being precluded by any prior Supreme Court caselaw; 4) as reflecting the fact that religious affiliation is in some faiths hereditary and immutable; and 5) as being consistent with the ban on discrimination on the basis of religion in almost every equal protection clause in every foreign constitution or international human rights document that we have surveyed. We analyze the impact our equal protection argument might have on Establishment Clause and Free Exercise Clause caselaw, and we explain why in our view State constitutional Blaine amendments forbidding government money from going to religious entities violate the Fourteenth Amendment. We conclude, perhaps most strikingly, by arguing that the Fourteenth Amendment’s ban on discrimination on the basis of religion renders the current system of funding the public schools unconstitutional. In our view, the Fourteenth Amendment obligates the states to provide students with education vouchers that they can redeem either at a secular or at a religious school depending on parental choice. Forcing religious students to attend a state funded school that is permeated with an atmosphere that is hostile to religion violates the Fourteenth Amendment.
Keywords: Fourteenth Amendment, Class Legislation, Political Rights, Historical Persecution, History of Religious Equality in America, Discrimination on Basis of Reglion, Education Monopoly, Endorse Pluralism
JEL Classification: K10, K19, K30, K39
Suggested Citation: Suggested Citation
Calabresi, Steven G. and Salander, Abe, Religion and the Equal Protection Clause (August 14, 2012). Northwestern Public Law Research Paper No. 12-19. Available at SSRN: https://ssrn.com/abstract=2130038 or http://dx.doi.org/10.2139/ssrn.2130038
By Paul Horwitz