Separate is Inherently Unequal, Unless You're Religious: The Peculiar Constitutionlization of Religious Segregation

Abstract

This article seeks to explain how a relative newcomer to constitutional anti-discrimination jurisprudence, secular identity, has managed to gamer a far higher degree of protection than historically suspect classes, such as race and gender. It attributes this phenomenon to the "separate but equal" model of equality inherent in the doctrine of "separation of church and state." It notes that, despite acknowledging that government segregation is per se unequal in the Brown decision, the Supreme Court has continued to enforce religious segregation as a requirement of the Establishment Clause. In doing so, the Court has created a new type of discrimination based on level of religious exercise. After comparing protection of secular identity to the protections afforded to race and gender, this article recommends that the Court abandon the wall metaphor and its progeny and apply the equal protection analysis it uses to secure gender equality to secure religious equality.

Keywords: Religious Freedom, Establishment Clause, Supreme Court, Discrimination, Segregation, Constitutional Law, Equal Protection, Equality, Secular Identity