Religious Liberty, Discriminatory Intent, and the Conservative Constitution

51 Pages Posted: 9 Jan 2023 Last revised: 7 Nov 2023

Date Written: November 6, 2023


The Supreme Court shocked the world at the end of its 2021–22 term by issuing landmark decisions ending constitutional protection for abortion rights, expanding gun rights, and weakening what remained of the wall between church and state. One thread uniting these cases that captured the public’s attention is the rhetoric common of originalism—a backwards-looking theory of constitutional interpretation focused on founding-era meaning and intent. This Article identifies the discriminatory intent doctrine as another powerful tool the Court is using to protect the social norms and hierarchies of a bygone era, and to build a conservative Constitution.

Discriminatory intent rose to prominence during the Burger and Rehnquist Courts through the development of rules requiring intent, rigidly defining intent, and limiting the evidence relevant to prove intent. Application of these rules in equal protection claims often shielded legal structures from reproach that disadvantage women and people of color. By contrast, today’s Court is revisiting and radically reinterpreting these rules in ways that favor conservative religious adherents in First
Amendment claims.

In Free Exercise Clause cases brought by conservative Christians challenging seemingly religiously neutral and generally applicable laws, the Court has credited allegations of discriminatory intent on thin evidentiary records. Additionally, the Court has crafted a new strict rule designed to prevent even the possibility that discriminatory intent could creep into future decision-making—even when no evidence of actual bias presently exists. Meanwhile, the Court in Establishment Clause claims has abandoned longstanding intent rules prohibiting favoritism or hostility towards religion; instead, the sole relevant question is now whether founding-era practices support the government’s religious involvement.These emerging and conflicting roles for discriminatory intent in the Religion Clauses leave religious minorities and non-believers with diminished constitutional protection, while insulating the Christian right from perceived victimization by progressive forces who have sought to stem a global pandemic, promote reproductive rights, and prevent discrimination against LGBTQ individuals.

Keywords: Religious Liberty, Equal Protection, Free Exercise, Establishment, Race, LGBTQ, Discrimination

Suggested Citation

Boso, Luke, Religious Liberty, Discriminatory Intent, and the Conservative Constitution (November 6, 2023). 2023 Utah L. Rev. 1023 (2023) , Univ. of San Francisco Law Research Paper , Available at SSRN: or

Luke Boso (Contact Author)

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States

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