Equal Protection Clause and Religious Freedom

Amendment to the U.S. Constitution serves to ensure that all persons are afforded equal treatment by the government, including governmental treatment of religious groups. Through the Fourteenth Amendment, the Religion Clauses of the First Amendment were first incorporated against the states in 1947 through Everson v. Board of Education. More recently, the courts have tended to ground treatment of religious groups in the First Amendment instead of an equal protection clause analysis grounded in the Fourteenth.

Ordinarily, equal protection acts to protect members of minority groups, in general, from unfair treatment in a majoritarian system. An equal protection analysis is triggered when the government treats similarly situated individuals dissimilarly or when government action affects an individual’s fundamental rights under the Constitution. Classifications based on a ‘‘suspect class’’ (for example, race) are subjected to ‘‘strict scrutiny.’’ That is, in order for the government action to survive, the government must have a ‘‘compelling state interest,’’ and the governmental action must be ‘‘narrowly tailored’’ to accomplish that interest. The courts consider certain characteristics that strongly correlate with suspect classes: historical subjugation, political powerlessness, distinct attributes, and immutability, all of which are prevalent in minority religious groups. When the equal protection inherent in the Religion Clauses is imported, the requirements of the Free Exercise Clause can conflict with a stigma-based equal protection. The government may not endorse one religion over another.

In the area of free speech and equal protection, religious groups are protected in their speech and press activities at the same level as other groups and individuals. However, the Religion Clauses do not provide greater protection to the religious groups in proselytizing. As a result, the Free Exercise Clause does not provide rights unavailable to other groups under the free speech clause where expression is concerned.

Also, in public education religious groups are afforded a right similar to any other group to gather under either a free exercise or free speech analysis. In application, however, certain minority religious groups, particularly disfavored groups such as Wiccan or Satanist groups may face hurdles in gaining the constitutional rights that apply.

One of the major factors that differentiate religion, specifically religious practice from other suspect classifications, is the belief structure inherent in religion. A constitutional doctrine that bends to every belief (and claimed belief) may place religious doctrine ahead of the legal mandate of neutral laws. In Employment Division v. Smith (1990), the Supreme Court diminished the scrutiny required by the equal protection aspect of the Religion Clauses as applied to neutral laws of general applicability.

Despite the lower level of scrutiny afforded to religious groups in the face of neutral laws, laws that treat religious groups less favorably than cultural, educational, and civic groups may be struck down. For example, in Fairfax Covenant Church v. Fairfax County School Board (1994), the U.S. Court of Appeals for the Fourth Circuit struck down a law setting rental rates of school facilities higher for churches than other nonprofit organizations.

MICHAEL KOBY

Cases and Statutes Cited

  • Employment Division v. Smith, 494 U.S. 872 (1990)
  • Everson v. Board of Education, 330 U.S. 1 (1947)
  • Fairfax Covenant Church v. Fairfax County School Board, 17 F.3d 703 (4th Cir. 1994)

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