Baptizing the Fourteenth Amendment: Equal Protection and Religion

Abstract

Despite its prominence in American constitutional law, the Fourteenth Amendment’s Equal Protection Clause has uncertain reach. While discrimination based on race or sex falls within the Clause’s purview, other classifications remain a mystery. Chief among them are classifications based on religious affiliation or belief. Long mentioned alongside race and sex, religion is the perennial bridesmaid of equal protection jurisprudence.

For decades, the equal-protection significance of religious classifications was largely irrelevant. That changed with the Supreme Court’s 2004 decision in Locke v. Davey. In Locke, the Court described a “play in the joints” between the Religion Clauses — i.e., there exist “state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.” This evolution in First Amendment jurisprudence opens a new role for equal protection. If religious classifications are suspect, then unequal treatment, though permitted by the Religion Clauses, cannot persist without surviving heightened scrutiny. This Article examines the arguments for recognizing religion as a suspect classification as well as several consequences that follow from that designation.

Keywords: Equal Protection, Religion, Fourteenth Amendment