The Impossibility of Religious Equality

Abstract

The Supreme Court has recently adopted a new rule of religious equality: if a law denies religious exemptions but provides other exemptions that undermine the law’s interests to the same degree as would a religious exemption, the law wrongfully discriminates against religion. This approach has commanded broad agreement in principle from the entire Supreme Court and from scholars of different stripes. At the same time, some of the doctrine’s defenders have taken issue with how some courts have applied it. This Article’s central claim is that the problem is more fundamental. Any principle of religious equality of the sort the Court has recently articulated is inherently unworkable, in part because it turns on treating that which is religious the same as its secular “comparators.” But religion is not comparable to anything—not in terms of its essence or its value. The current doctrine requires assuming that the category of “religion” is always at least as valuable as all that is “secular”—that is, that religion qua religion is as valuable as, and thus must always be treated as well as, all that is simply “not religion.” This assumption lacks both conceptual coherence and a normative basis. It also renders religious “equality” a contradiction in terms as it establishes not religious equality, but religious superiority.

Keywords: First Amendment, Equality, Free Exercise of Religion