The Equal Protection of Free Exercise: Two Approaches and their History

Abstract

Contrary to critics of the Supreme Court's current equal protection approach to religious liberty, this Article contends that, from the very first federal free exercise cases, the Equal Protection and Free Exercise Clauses have been mutually intertwined. The seeds of an equal protection analysis of free exercise were, indeed, planted before the Fourteenth Amendment within the constitutional jurisprudence of several states. Furthermore, this Article argues, equal protection approaches should not be uniformly disparaged. Rather, the drawbacks that commentators have observed result largely from the Supreme Court's application of an inadequate version of equal protection. By ignoring the lessons that the Fourteenth Amendment taught about the nature of group classification and instead emphasizing the individual, the current approach downplays free exercise claims. Considering this tendency within the context of contemporary theories of group rights and antidiscrimination law, the Article concludes that the nowneglected, alternative strand of an equal protection approach to free exercise should be revived.