Religious Liberty, Racial Justice, and Discriminatory Impact: Why the Equal Protection Clause Should be Applied at Least as Strictly as the Free Exercise Clause

Abstract

This Article offers a critical comparative analysis of the Supreme Court’s jurisprudence under the Free Exercise Clause and the Equal Protection Clause. In a number of recent cases, the Court has shown increasing solicitude for the rights of religious objectors and has upheld claims for exemptions from various laws—even in the absence of an intent by the government to discriminate against religion. This stands in stark contrast to the Court’s approach in cases involving claims of racial discrimination. Despite the harsh light that the COVID-19 pandemic, the Black Lives Matter movement, and other events have cast on the systemic inequalities that persist throughout American society, the Court has remained staunchly unmoved by the law’s disparate impacts on BIPOC communities and has insisted that claimants prove a discriminatory purpose in order to prevail. As a result, religious groups have greater rights to engage in some forms of discrimination than racialized minorities do to combat the effects of discrimination. This doctrinal dichotomy is untenable. As a matter of constitutional history, text, and structure, racial equality is an equal if not dominant value relative to religious liberty. Any move to strengthen the Free Exercise Clause by recognizing disparate impact liability for religious objectors must therefore be accompanied by a corresponding move to recognize such liability for BIPOC individuals under the Equal Protection Clause.