The Principle and Politics of Equal Value
81 Pages Posted: 14 Jul 2021 Last revised: 20 Jul 2021
Date Written: July 12, 2021
An unfamiliar equality principle is gaining prominence in constitutional discourse. Equal value 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. I offer two arguments in this Article. First, a version of equal value holds real attraction, not only within religious freedom law but also in other areas, such as freedom of expression and even equal protection for racial minorities. 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 or equal protection. This implementation of the concept promotes a problematic political program. If my account is correct, then equal value promises not an antidote to excessive judicial deference, as some have claimed, but instead a controversial politics.
Keywords: free exercise, equal value, most favored nation, Tandon, first amendment
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