Religious Liberty, Discriminatory Intent, and the Status Quo Constitution

Abstract

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. The threads uniting these cases are the language and rhetoric common of originalism—a backwards-looking theory of constitutional interpretation focused on founding-era meaning and intent. The Court has been clear that insulating the Constitution from change is originalism’s core function. Originalism, however, is not the only mechanism by which an increasingly conservative Court has sought to protect traditional social norms and hierarchies from disruption.

Through radical reinterpretations of the First Amendment’s Religion Clauses, the Court is insulating the Christian right from perceived victimization by progressive forces who have sought to stem a global pandemic, promote contraception access, and prevent discrimination against LGBTQ individuals. In both Free Exercise and Establishment Clause cases, the Court is eschewing decades of precedent in favor of robust new theories of discrimination that favor religious adherents. Specifically, this Article identifies the discriminatory intent doctrine as an increasingly potent tool for fortifying the status quo.

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 shielded legal structures disadvantaging women and people of color from constitutional reproach. Today, by contrast, the Court in free exercise claims is going out of its way to infer discriminatory intent against Christians in seemingly religiously neutral and generally applicable laws. Meanwhile, the Court in establishment 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, and they contribute to a conservative reimagining of the Constitution as an instrument protecting traditional majoritarian interests.

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