Religious Freedom v. Equal Protection

Regardless of the absence of equality from the original Constitution and Bill of Rights, the principle is imprinted into the heart of so much of the Supreme Court’s jurisprudence. In other words, in its interpretation of the Constitution, the Court has ensured that equality pervades it. For example, the principle is found in the Court’s rulings on the First Amendment. In Rosenberger v. Rectors and Visitors of the University of Virginia, the Supreme ←2 | 3→Court ruled that the government must not engage in viewpoint discrimination: “When the government targets not subject matter but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” Viewpoint discrimination, in other words, is a form of administering legal favor of one viewpoint over another in a manner that runs counter to “equal justice under law.” When government targets a viewpoint, it treats that viewpoint unequally compared to viewpoints it does not target.

In fact, equality permeates decisions in nearly every Amendment (except maybe the Third Amendment) in the Bill of Rights. In the Second Amendment case of McDonald v. City of Chicago, the Court affirmed Senator James Nye’s idea that the Fourteenth Amendment was unnecessary because “blacks, as citizens, ‘have equal right to protection, and to keep and bear arms for self-defense.”¹ In the Fourth Amendment case of Terry v. Ohio, the Court affirmed the equal right of every citizen to address questions to other persons and also to ignore an “interrogator and walk away.”² In the Fifth Amendment case of Bolling v. Sharpe, the Court reasoned that equality is inherent in due process, “The ‘equal protection of the law’ is a more explicit safeguard of prohibited unfairness than ‘due process of law,’. . . But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.”³ In the Sixth Amendment case of Gideon v. Wainwright, the Court reasoned, “From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.”⁴ In the Seventh Amendment case of Parklane Hosiery Company v. Shore, the Court reasoned an equality rationale undergirding access to jury trials, “The petitioners have advanced no persuasive reason, however, why the meaning of the Seventh Amendment should depend on whether or not mutuality of parties is present. A litigant who has lost because of adverse factual findings in an equity action is equally deprived of a jury trial….”⁵ In the Eighth Amendment case of Furman v. Georgia, Justice Douglas wrote in his concurring opinion, “One cannot read this history without realizing that the desire for equality was reflected in the ban against ‘cruel and unusual punishments’ contained in the Eighth Amendment. In a Nation committed to equal protection of the laws there is no permissible ‘caste’ aspect of law enforcement.”⁶ In the Ninth Amendment case of Olff v. East Side Union High School District, the Court ruled, “The ←3 | 4→word ‘liberty’ is not defined in the Constitution. But . . . it includes at least the fundamental rights ‘retained by the people’ under the Ninth Amendment. . . . One’s hair style . . . is certainly fundamental in our constitutional scheme—a scheme designed to keep government off the backs of people. . . . I see no way of allowing a State to set hair styles for patrons of its schools, any more than it could establish a welfare system only for men with crew cuts and women with bobbed hair. Once these lines are drawn, a serious question of equal protection of the law is raised.”⁷ In Shelby County v. Holder, the Court upheld a “fundamental principle of equal sovereignty”⁸ amongst states rights in the Tenth Amendment that prevents “disparate treatment of States”⁹ in federal law.

Taken together, the idea of “equality” is pervasive in the Bill of Rights as a matter of Supreme Court interpretations. Of course, the most explicit mention of equality that appears in the Constitution is in the Fourteenth Amendment. Taking effect in 1868, the Equal Protection Clause of the Fourteenth Amendment holds that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” This clause has been applied to several cases involving state and federal laws. In Brown v. Board of Education, the Court ruled on Fourteenth Amendment grounds that, “in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. . . .We have now announced that such segregation is a denial of the equal protection of the laws.”¹⁰ In Reed v. Reed, the Court invoked the Fourteenth Amendment to apply to sex discrimination, “By providing dissimilar treatment for men and women who are thus similarly situated, the challenged section violates the Equal Protection Clause.”¹¹ And, in Obergefell v. Hodges, the Court ruled, “the right to marry is a fundamental right inherent in the liberty of the person, and under Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry.”¹²

Furthermore, even though the Fourteenth Amendment specifically applies only to the states and makes no mention of the federal government, the Supreme Court has ruled that the Fourteenth Amendment may be applied to understanding the constitutionality of federal laws. Specifically, in the previously mentioned case of Bolling v. Sharpe, the Court argued that the Equal Protection Clause of the Fourteenth Amendment may be incorporated into the Fifth Amendment’s Due Process Clause. The Court held that even though the Fourteenth Amendment does indeed only apply to the states, the intent of that Amendment may also define the way we think about what Due ←4 | 5→Process means in the Fifth Amendment. Put simply, if the federal government violates the standard required of states in the Fourteenth Amendment, then that also may be defined as a federal violation of Due Process.

The applicability of equal protection to the federal government may also have roots in the Constitution’s original meaning because of the overarching idea of fiduciary responsibility. Gary Lawson, Guy Seidman, and Robert Natelson argued that, “Federal officials are fiduciaries”¹³ based on the original intent. They wrote, “when the Constitution granted power to agents, it did so against the background of fiduciary law.”¹⁴ They continued, “the underlying principles—that agents must exercise their authority with care, honesty, and attention to the interests of those who employ them—are as much part of the Constitution as the basic principles of English grammar.”¹⁵ While grounding federal equal protection in a fiduciary foundation, they argue, one finds at the very least, “the same kinds of problems, conundrums, and value choices with which the law has wrestled for a century and a half when trying to understand the Fourteenth Amendment.”¹⁶

Whether it be the “self-evident” idea that “all men are created equal” in the Declaration of Independence, or the idea that equal protection is inherent in the fiduciary role of federal officials under their constitutional obligations, or the Supreme Court affirmations of equal protection pervading the Bill of Rights, or the application of the Equal Protection Clause of the Fourteenth Amendment, one thing appears certain—the idea of “equality” is built into the fabric of American rights. As the historical evolution of “equality” suggests, the cultural resonance of the word itself may, indeed, be self-evident (for it hasn’t vanished). What is far from self-evident is what that word will come to mean in ongoing cases that dispute either its privileged status in constitutional law when in conflict with other rights, and what it will mean to the lived experiences and realities of American life in the future.

The Ideal of Religious Freedom in the Fabric of American Rights

Just as equality permeates constitutional rights, the same might be said about religious freedom. Thomas Jefferson believed that religious freedom as tied to the “Creator” was “the most inalienable and sacred of all human rights.”¹⁷ The colonial and founding generations of America took their “Creator” seriously, and shared an almost exclusively Christian religious faith. As E. Gregory Wallace reminded us, “They believed that religion is unique because it entails duties owed to God. Their principal justifications for religious freedom rested ←5 | 6→upon the theological premise that God exists and is sovereign over both human government and the individual citizen.”¹⁸

The freedom of religion appears as the first of the five freedoms in the First Amendment in the Bill of Rights. As such, the freedom of religion is often referred to as our “first freedom.”¹⁹ And, like the idea of equality, religious freedom permeates the Constitution and the Bill of Rights, both as a matter of the Constitution’s text and as a matter of Supreme Court interpretations. In the founding era, “Freedom of religion was universally said to be an unalienable right; the status of other rights commonly found in state bills of rights, such as property or trial by jury, were more disputed and often considered derivative of civil society.”²⁰ James Madison even went so far as to write that the “universal sovereign” precedes any claims of a civil society. In other words, “when the people vested power in the government over civil affairs, they necessarily reserved their unalienable right to the free exercise of religion, in accordance with the dictates of conscience.”²¹ Regardless of the differences in philosophy between framers like Jefferson and Madison, they agreed to begin the Bill of Rights with religious freedom, declaring that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

It may seem a bit peculiar that rationales for religious freedom would appear in Supreme Court cases concerning other rights in the Bill of Rights. Like equality, religious freedom found its way into the Second Amendment case of Printz v. United States. Justice Thomas analogized the government restraint on intervening in religious freedom as a rationale for showing similar restraint when it comes to gun rights. He wrote, “The Constitution, in addition to delegating certain enumerated powers to Congress, places whole areas outside the reach of Congress’ regulatory authority. The First Amendment, for example, is fittingly celebrated for preventing Congress from ‘prohibiting the free exercise’ of religion . . . The Second Amendment similarly appears to contain an express limitation on the Government’s authority.”²²

The Third and Fourth Amendments are often woven together to form a general right to privacy. The freedom of religion often makes its way into these cases based on the idea that religion is one of those private affairs often exercised in the home, and that troops and police officers may not intrude on that space. For example, in citing both of these freedoms, the Court upheld precedents in Poe v. Ullman against police intrusion on teaching religious beliefs in the home, like those of pacificism. The Court ruled, “Mr. Justice Brandeis, writing of a statute which made ‘it punishable to teach (pacifism) in any place (to) a single person no matter what the relation of the parties may be,’ found such a ‘statute invades the privacy and freedom of the home. ←6 | 7→Father and mother may not follow the promptings of religious belief, of conscience or of conviction, and teach son or daughter the doctrine of pacificism. If they do, any officer may summarily arrest them.’”²³ The Court concluded, “These decisions . . . ‘have respected the private realm of family life which the state cannot enter.”²⁴ Religious freedom is, therefore, bound up with the right of privacy in the Third and Fourth Amendments because of the way it is exercised in the home.

Religious freedom is also implicated in the Fifth Amendment. For example, in U.S. v. Weldon, the Court reasoned that violating a person’s free exercise of religion may inherently violate, in part, a person’s Fifth Amendment rights rooted in the Due Process and Self-Incrimination Clauses. The Court noted, “Congress may make no law ‘prohibiting the free exercise’ of religion, it may not enter the field through investigation and probe the minds of witnesses as to whether they go to church or to the confessional regularly, why they chose this church rather than that one, etc.”²⁵ Even if Congress did make a law enabling the violation of that free exercise, not only would that law be unconstitutional, but the person who would be approached in their religious place of worship may exercise their religious freedom by, for example, confessing to a priest while also exercising their Fifth Amendment right against self-incrimination and not confessing to the congressionally authorized investigators.²⁶

Religious freedom has been an issue in several constitutional questions in federal and state courts as it relates to the Sixth through Tenth Amendments. For example, in People v. Gilliam, the court ruled that the defendant’s Sixth Amendment rights were violated when the lower court asked the defendant to choose between exercising his religious freedom to attend religious services on the sabbath, or to attend his voir dire for his case.²⁷ In the Seventh Amendment case of United States v. Hillyard, the court ruled in favor of a member of the Jehovah’s Witnesses who objected on religious grounds to fulfilling their jury duty obligation (rooted in the court’s obligation to provide a jury under the Seventh Amendment).²⁸ In the case of Robbins v. Robertson, the court ruled that a violation of religious freedom may inherently be an Eighth Amendment violation in certain cases involving religious dietary requirements in the prison context, “by asserting that the only way he could comply with the dictates of his religion was to accept a nutritionally inadequate diet—logically suggests that this same assertion would give rise to an Eighth Amendment claim. That being so, and having reversed the district court’s dismissal of the First Amendment claim, we are also obliged to reverse the dismissal of the Eighth Amendment claim.”²⁹ In City of Wadsworth v. Owens, the court ruled that a curfew restricting minors from exercising ←7 | 8→their religious freedom to attend midnight mass was evidence of abridging the Ninth Amendment right “to move freely, without fear of governmental restriction or invasion . . . [T]‌his right is extended to minors and that before this right may be abridged, the state must show a compelling state interest.”³⁰