Applying an Equal Protection Methodology to Speech and Religion Cases

Chapter 14
Applying an Equal Protection Methodology to Speech and Religion Cases

Patrick M. Garry

Equal Protection Norms and the Bill of Rights

The currently popular view sees the First Amendment as a provision for achieving a certain vision of individual autonomy. According to this view, the Bill of Rights was included in the Constitution for the purpose of preserving individual autonomy through insulating the individual from various democratic outcomes. Under this argument, the Bill of Rights seeks first and foremost to identify particular individual freedoms and then to create a constitutional protection for those substantive freedoms, in a way that facilitates or preserves a judicially defined view of those freedoms.

Another argument looks at the Bill of Rights from a wholly different perspective. This argument sees the bill as a set of provisions designed primarily to better ensure the maintenance of limited government within the constitutional scheme. According to this argument, the Anti-Federalists, as the primary advocates for and shapers of the Bill of Rights, sought to achieve not a particular substantive protection of specific individual rights, but rather an assurance that the government being created through the new Constitution would indeed be a government of limited powers. To further secure this limited government, the Bill of Rights specified certain explicit areas in which the government would have no power to act or intrude. Whereas the rest of the constitutional scheme set out structural provisions for the overall maintenance of limited government, the Bill of Rights articulated specific substantive areas in which the principle of limited government was to prevail. The Anti-Federalists were not so concerned about identifying and protecting a finite list of particular individual rights in the new democracy; they were more concerned about alleviating fears that the original Constitution had not adequately prevented the new government from overstepping its allotted powers.

This chapter does not intend to suggest that the framers and ratifiers of the Bill of Rights did not care about individual freedoms or the constitutional protection of those freedoms. Indeed, this concern had helped inspire the Declaration of Independence and America’s break with England. But it does argue that the framers and ratifiers of the Bill of Rights did not intend the preservation of individual autonomy or dignity to be the direct or primary goal of the Bill of Rights. This was because the framers and ratifiers did not know exactly how to go about that goal. To the framers, the concepts of natural and individual rights were not only vague and imprecise, but they were the subjects of substantial differences. They did not have a sufficiently clear idea of the parameters and scope of those individual rights, nor of how to protect each of those specific rights. Instead, they went about trying to protect liberty in a slightly more indirect manner—that of striving to limit the power and reach of government, which in turn would serve the cause of liberty.

It is the goal of this chapter to propose a new approach to the Bill of Rights in general and the First Amendment in particular. Instead of focusing on the particular freedoms specified in each amendment and precisely defining the scope of each freedom, this chapter seeks to arrive at a simpler, more objective and comprehensive approach. It argues that the Bill of Rights serves to protect the freedoms listed in it through the incorporation of equal protection norms. This approach may best harmonize the rights listed in the Bill of Rights with the workings of the democratic process outlined in the original Constitution. In a democracy, society governs itself according to its best judgment; but the glaring problem with any democracy is how to handle minorities and minority rights. An equal protection approach serves this concern, while at the same time allowing democratic society to govern itself—the proviso being that whatever the majority does to the minority it must do to itself.

Many current First Amendment doctrines already incorporate an equal protection approach, but a more explicit equal protection approach could eliminate much of the complexity and confusions in First Amendment doctrines, thus greatly simplifying the Court’s jurisprudence in this area. The key element in a methodology for applying an equal protection approach is the identification of the proper baseline or comparison point for determining equality of treatment. But the judicial determination of appropriate baselines may be a more definable and boundaried endeavor than many of the approaches currently used by the Court in its First Amendment jurisprudence.

By viewing the Bill of Rights as a provision aimed at ensuring that government possesses only limited powers and mandating that the various listed freedoms be protected through an equal protection approach, courts would be significantly relieved of having to identify the parameters and underlying values and purposes of various individual rights and freedoms. Defining the parameters of individual rights, as well as which parameters are necessary to achieve a particular degree of individual autonomy, often puts courts into a quasi-lawmaking role. By seeking to protect individual freedoms through an equal protection approach, courts can better avoid interjecting substantive values into constitutional doctrines. Thus, their role can be both more narrow and more defined, which in turn will help preserve judicial integrity and authority.

James Madison articulated a classic concern of equal protection in Federalist No. 10. He worried about the potential in a democracy for “the most numerous party, or, in other words, the most powerful faction” to “trample on” the rights of minority groups.1 For Madison, the goal was to create “a government which will protect all parties, the weaker as well as the more powerful.”2 But this has also traditionally been seen as a goal of the Bill of Rights, which then by definition must incorporate notions of equal protection. Thus, in connection with the concerns of Federalist No. 10 and the protection of minority rights, equal protection should be a primary focus of courts in a democratic society. And it is through the Bill of Rights that the Constitution seeks to protect liberty through equal protection norms.

The Fourteenth Amendment contains an equal protection provision that exists separately and somewhat independently of the Bill of Rights. Generally speaking, equal protection norms prohibit the government from discriminating against targeted groups of people.3 The Equal Protection Clause mandates “that all persons similarly situated should be treated alike.”4 Specifically, the clause was aimed at the newly freed slaves in the South;5 but more generally, it was essentially aimed at tying together the rights of the minority with those of the majority, since whatever rights were given to the majority would also have to be given to the minority.6

Even though both equal protection and due process have been interpreted to protect fundamental rights, an equal protection approach provides for a less intrusive or arbitrary judicial review. Under this approach, courts do not need to articulate substantive individual values; they simply need to determine whether one group of individuals is being treated differently than another, similarly situated group. An equal protection approach can also often remedy improper governmental motives. Since an improper governmental motive most likely will result in some discriminatory targeting of a particular group, an equal protection approach on its own can eliminate that discriminatory treatment, even if the specific ill motive is never uncovered.

Equal Protection as a Guardian of Individual Rights in a Democracy

The Bill of Rights lays out various areas of freedoms that the ratifying generation believed important in maintaining the health and integrity of American constitutional democracy. But the problem that has preoccupied generations of judges and scholars is how to protect those various freedoms in a manner consistent with the kind of political system that makes such freedoms possible in the first place—a system of democratic government. The solution offered here is that an equal protection approach is the best way to protect the individual freedoms specified in the Bill of Rights, while also respecting and upholding the workings of democratic governance.

Any equal protection approach facilitates judicial restraint and keeps the courts from usurping democratic authority. Under an equal protection analysis, government unduly expands its authority when it targets certain groups, much more so than if it happens to burden a right or activity exercised by all of society, which in turn can use its political power to eliminate that burden. Furthermore, an equal protection analysis allows courts to focus more on the exercise of government power than on the nature of individual substantive rights.

Notions of equality and neutrality, as now being applied in First Amendment jurisprudence, have had a major impact on American constitutionalism throughout the last half century. In the wake of the Supreme Court’s 1954 decision in Brown v. Board of Education, the Court has increasingly applied equality principles, first through the Equal Protection Clause, and later extending to such individual rights areas as the First Amendment.7 This, suggests Daniel Conkle, is not surprising “given the ever-increasing importance of formal equality under the Equal Protection Clause and in the legal culture generally,”8 In the context of religious accommodation, for instance, “the Supreme Court defines the government’s obligation in terms of neutrality.”9 As Justice Anthony Kennedy declared in Rosenberger v. Rector and Visitors of the University of Virginia, the Establishment Clause basically requires the government to follow “neutral criteria and even-handed policies.”10

An equal protection approach focusing on limiting the power of government to discriminate, rather than the protection or fulfillment of individual autonomy, can be seen in the Court’s decision in Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue, where the Court struck down a state tax imposed only on the ink and paper used by certain newspapers.11 Obviously, the government could far more significantly burden individual expression and autonomy by simply imposing a high general tax on all businesses (which would be constitutional) than by imposing a lower special tax that applies only to some newspapers; but such a tax would not violate equal protection norms, and hence would probably be constitutional.

Similarly, in R.A.V. v. City of St. Paul, the Court held that the government could not single out certain types of fighting words to be regulated in ways that other fighting words were not regulated.12 Thus, government cannot target certain speech for special regulation, even if that speech is generally not entitled to First Amendment protection in the first place. However, the government could heavily regulate, even to the point of censorship, all types of fighting words equally. Again, such an approach would infringe more upon individual autonomy than would a more selected approach, which was overturned in R.A.V. v. City of St. Paul, where equal protection norms prevailed over any kind of individual-autonomy concern. Even speech that by itself has no First Amendment protection—for example, fighting words—nonetheless has some kind of constitutional protection under the equal protection model. What is most important about the Court’s decision in R.A.V. v. City of St. Paul is the rule that the government cannot engage in viewpoint discrimination, even with respect to speech that is not normally protected under the First Amendment.

Equal Protection and the Establishment Clause

An analysis of First Amendment case law reveals how equal protection notions can govern and protect individual rights.13 The Establishment Clause, for instance, reflects a constitutional commitment to equal treatment for all religions.14 According to the Court, the Establishment Clause prohibits the government from preferring “one religion over another.”15 This prohibition against preferring one religion over another has been called “the clearest command of the Establishment Clause.”16

In Larson v. Valente, for instance, the Court articulated the equality principle at the heart of the Establishment Clause.17 The Court struck down a Minnesota law that exempted religious organizations from certain registration requirements imposed on groups engaged in charitable solicitations, but only if the religious entity received at least half its contributions from members or affiliated organizations. According to the Court, the law granted “denominational preferences” to certain sects but not to others.18 And in Board of Education of Kiryas Joel Village School District v. Grumet, the Court ruled that New York’s creation of a separate school district for a religious community violated the Establishment Clause because it “singled out a particular religious sect for special treatment.”19

In interpreting the religion clauses of the First Amendment, courts have increasingly tended toward an equal protection approach. The effect, suggests Douglas Laycock, is that religious freedoms have changed from a substantive liberty, triggered by a burden on religious practice, to a kind of non-discrimination right, triggered by a legal treatment that is not neutral or not generally applicable.20 Beginning in the 1980s, the Court began relying on equal treatment norms in its Establishment Clause cases, drifting away from the no-aid principle.21 Using these norms, the Court has upheld a number of programs allowing public funds to flow to religious institutions.22 Among the programs the Court has upheld are a voucher program in which vouchers are used to pay tuition at any school, including religious schools,23 and long-term loans of equipment to private schools, including religious schools.24

As early as 1968, in Board of Education v. Allen, the Court upheld the state provision of secular textbooks to religious schools, noting that the statute at issue was simply conferring secular benefits neutrally among all students.25 Later, in Tilton v. Richardson, the Court upheld the Higher Education Facilities Act authorizing federal grants and loans for construction by colleges and universities.26 As the federal funds would be used to finance construction of buildings on the campuses of religiously affiliated universities, as well as secular universities, the Court found that the statute strove to equalize the governmental benefits available to all higher education students.

The Supreme Court’s equality approach to the Establishment Clause has also been evident in cases involving free speech claims. In Lambs Chapel v. Center Moriches Union Free School District, the Court held that excluding religious speech from a designated forum violated the Free Speech Clause, despite objections from the school district that the use of such school facilities would violate the Establishment Clause.27 After a local church was denied permission to show a film series on school property that discussed family and child-rearing issues from a religious perspective, which would clearly have been a permitted use of the building were it not for the religious content of the series, the Court ruled that the Establishment Clause could not be used to single out and exclude religious groups. Earlier, in Widmar v. Vincent, the Court had struck down a state university regulation prohibiting the use of university facilities for religious speech purposes.28 The Court ruled that the university had created a designated public forum when it allowed other student groups to use its buildings for speech activities; hence, the discriminatory exclusion of the religious group was overturned.29

In Rosenberger v. Rector and Visitors of the University of Virginia, the Court again addressed the exclusion of religious speech from a state-created forum.30 In Rosenberger, the University of Virginia provided funding for student publications, but specifically prohibited any religious-oriented publications from eligibility for such funds. But the Court disagreed, ruling that a denial of funding to publications with a religious perspective would constitute viewpoint discrimination in violation of the Free Speech Clause.31 Moreover, even though Rosenberger essentially involved free speech issues, the Court also stated that an equal funding of both religious and nonreligious student publications did not violate the Establishment Clause.32 In a similar vein to Rosenberger and Lambs Chapel was the Court’s decision in Good News Club v. Milford Central School.33 In Good News Club, the Court held that the exclusion of a religious group from a state-created public forum (for example, the after-hours use of public school facilities) constituted viewpoint discrimination in violation of the Free Speech Clause.34

In the 1985 case of Aguilar v. Felton, the Supreme Court in a non-neutral decision ruled against parochial school participation in a special education program that provided remedial English and mathematics assistance to economically and educationally disadvantaged students at both public and private schools. But in a later decision employing equality principles, the Court overruled Aguilar.35 In Agostini v. Felton, the Court stressed the importance of formal neutrality in concluding that the Establishment Clause did not preclude publicly funded teachers from teaching secular, remedial courses on the premises of religious schools under a federally funded program that supported teaching at nonreligious schools as well.36 The Court suggested that Establishment Clause invalidation would be unlikely when aid is allocated on the basis of neutral criteria.37

Later, in Zelman v. Simmons-Harris, the Court used the neutrality doctrine to uphold Cleveland’s school voucher program.38 It ruled that the vouchers promoted private choice by giving money directly to students for their use at either religious or nonreligious schools.39 This scheme was found neutral because it left the decision of whether to apply funds toward a religious education to the private choices of parents and their children, and not to the government.40 According to Zelman, so long as the programs exhibit governmental neutrality toward religion, indirect aid programs are permissible under the Establishment Clause, regardless of whether or not tuition money is ultimately diverted for religious purposes.41

The requirement of denominational equality obviously demands that all religions be treated equally. However, the requirement of equality is sometimes seen as going one step further, demanding that the government neither favor nor disfavor religion in general, as compared to nonreligion.42 Thus, the Court has often adopted a concept of religious neutrality that applies not only between different religious denominations, but also between religion and nonreligion.

This highlights a crucial issue in applying an equal protection approach—namely, that of arriving at the proper baseline to be used in determining equality of treatment. Should the baseline be a comparison of religion with nonreligion; or should the baseline only involve an inquiry into whether all religions are being treated equally? The First Amendment, concerned as it is with limiting government power to interfere with either the individual or the institutional spheres of religious observance, may not focus on drawing the same kind of limits to government intrusion into nonreligion, whatever that is.

The Free Exercise Clause

Just as neutrality and equality have become governing principles for Establishment Clause cases, they have also been applied to the Free Exercise Clause. Here the principle of equality requires that all religious believers, regardless of their beliefs, should be treated equally under the law and that the government should not have the power to single out particular individuals or religious beliefs for discriminatory treatment.

The neutrality approach was adopted in Employment Division v. Smith, where the Court held that a law criminalizing the use of peyote, as applied to two American Indians, did not violate the Free Exercise Clause, finding that the law was one of general applicability and was neutral regarding religious conduct.43 The Court distinguished between laws that specifically target religion and neutral laws of general applicability, which, according to the Court, did not constitute an infringement of free exercise, no matter how substantial the burden on religious exercise.44 With this focus on neutrality, the Smith Court moved its Free Exercise Clause jurisprudence in the same direction as its Establishment Clause doctrines.

The emphasis on neutrality in Smith marked a departure from the Court’s previous free exercise “fundamental rights” jurisprudence. Prior to Smith, the Court’s rule was that any government-imposed burden on religious practice presumptively violated the Free Exercise Clause, and that such burdens could only be justified by a compelling government interest.45 This doctrine was articulated in Sherbert v. Verner and Wisconsin v. Yoder, where the Court held that any state action substantially burdening religious exercise had to be strictly scrutinized. But in Smith, the Court declared that neutral laws of general applicability burdening religious exercise do not require any heightened judicial review.46 This rule—that the Free Exercise Clause prohibited only deliberate governmental discrimination against religion—rested in part on a belief that the granting to religion of exemptions from neutral laws would pose too big of a risk of discrimination between religions.47

The Smith rule of equality, however, can sometimes be a difficult rule to fulfill, particularly depending on how one measures it. Laycock has outlined two different concepts of neutrality or equality in connection with the First Amendment religion clauses. The notion of “formal neutrality” would preclude formal or deliberate discrimination either between religions or between religion and nonreligion.48 The other form of neutrality, he suggests, is “substantive neutrality”—a principle that examines whether the government’s actions, even if formally neutral, have the actual effect of promoting or discouraging religion.49

According to Conkle, formal neutrality is the simplest means of implementing a policy of equal treatment for religion and nonreligion, and has become the dominant theme under both the Free Exercise and Establishment Clauses.50 This notion of formal neutrality certainly prevailed in Smith, where the Court upheld a formally neutral, non-discriminatory state law, even though that law resulted in a significant burden to a particular religious exercise. Thus, Smith changed free exercise from a substantive liberty to a comparative right, “in which the constitutionally required treatment of religious practices depends on the treatment of some comparable set of secular practices.”51 Whereas a personal-autonomy model of the Free Exercise Clause would focus on burdens caused by laws infringing on religious exercise, Smith changed the focus to discrimination.

The Court elaborated on the Smith rule in the case of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, which involved a challenge to several local ordinances that prohibited animal sacrifices.52 Although the City argued that the laws reflected a generally applicable ban on those sacrifices, the Court found that the ban was targeted at religious uses, exempting any killings of animals for secular reasons. When taking into account both the laws and all their exemptions, it became clear to the Court that only the killing of animals for religious reasons—indeed, only the ceremonies of a particular sect, the Santeria religion—was subject to penalty.53 Consequently, because the ordinances on animal sacrifice prohibited religious but not secular killings of animals, the Court found that there was objective evidence of governmental targeting religious conduct for discriminatory treatment.54 Thus, both Smith

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