Excerpted From: René Reyes, Religious Liberty, Racial Justice, and Discriminatory Impacts: Why the Equal Protection Clause Should Be Applied at Least as Strictly as the Free Exercise Clause, 55 Indiana Law Review 275 (2022) (354 Footnotes) (Full Document)


ReneReyesThe years 2020 through 2021 brought massive disruptions to many areas of American life. The COVID-19 pandemic reached the United States in January of 2020, and public officials began to recommend or impose limitations on interpersonal activities shortly thereafter. The Centers for Disease Control advised in mid-March that gatherings of fifty or more people should not be held for the next eight weeks, while many state and local governments issued guidelines of their own. Major cities like New York, Los Angeles, and Boston closed their public schools for in-person instruction and transitioned to online learning. Governors across the country issued more stringent and sweeping closure orders that allowed only essential businesses and services to remain open.

Predictably, disputes arose as to the scope of the term “essential.” Churches did not meet the definition in some jurisdictions, meaning that they were not exempt from closure orders or limitations on gathering sizes. Former President Donald Trump soon threatened to “override” state governors who refused to allow houses of worship to reopen, and several religious groups challenged the orders on Free Exercise grounds. The Supreme Court turned away the first such challenge to come before it in South Bay United Pentecostal Church v. Newsom. There, the petitioners sought to enjoin enforcement of an order issued by the Governor of California limiting attendance at places of worship to the lesser of 100 persons or 25 percent of building capacity. Chief Justice Roberts joined the majority in denying the application for injunctive relief, and wrote separately to emphasize that the governor's order appeared to be consistent with the Free Exercise Clause because it was neutral with respect to religion: “Similar or more severe restrictions apply to comparable secular gatherings .... And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”

Yet just a few months later, the Chief Justice found himself in the minority when the Court granted an injunction against enforcement of an analogous order issued by the Governor of New York. In Roman Catholic Diocese of Brooklyn v. Cuomo, the order capped attendance at religious services at ten persons in designated “red zones” and twenty-five persons in “orange zones.” This time, the Court held that the order was not religiously-neutral insofar as it imposed no similar admissions caps on many secular businesses and services that had been deemed essential. In other words, “the regulations [could not] be viewed as neutral because they single[d] out houses of worship for especially harsh treatment.” Justice Sotomayor noted in dissent that the New York order did in fact apply similar attendance restrictions to comparable secular gatherings such as concerts and movie showings. As for the exempted businesses and services, public health experts had concluded that these did not pose the same health risks as religious services and other sizeable events because they did not involve “large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time.” There was therefore no issue of religious discrimination in her view, since religious activities were being treated at least as favorably as comparable secular activities.

The dispute amongst the Justices in these cases is consistent with larger divisions about the state of Free Exercise Clause jurisprudence. Ever since Employment Division v. Smith was decided in 1990, the rule has been that neutral laws of general applicability do not violate the Free Exercise Clause or trigger strict scrutiny merely because they impose burdens on religious practice. In South Bay United Pentecostal Church and Diocese of Brooklyn, much of the disagreement between the majority and dissenting opinions focuses on what it means for a law to be “neutral” and “generally applicable” for purposes of the Smith rule. But in other cases, the issue seems to be whether the Smith rule should continue to endure at all. Indeed, that very question was directly posed to the Justices during the October 2020 term in Fulton v. City of Philadelphia. Although the Fulton case itself did not arise out of closure orders issued during the pandemic, it is a natural culmination of many of the arguments about the scope of religious liberty that have been brought to the fore during the COVID-19 era. This Article will analyze the Court's resolution of those arguments in Fulton and assess the implications of the decision for Free Exercise jurisprudence.

At the same time, this Article will also analyze the implications of Fulton and other recent Free Exercise cases for a separate area of jurisprudence--namely, the Equal Protection Clause. For if the events of 2020-2021 have accentuated the challenges posed to religious freedom under existing legal frameworks, they have highlighted even more starkly the disparities that Black Americans and members of other BIPOC communities continue to face in so many areas of American life. The COVID-19 pandemic itself is an illustrative example. Studies consistently show that Black and Latinx people have been disproportionately affected by the coronavirus--ranging from higher rates of infection to lower rates of vaccination. Other studies suggest that these differences are attributable to “structural determinants-- including inequality in housing, access to care, differential employment opportunities, and poverty--that remain pervasive in Black and Hispanic communities.” These determinants themselves have their origins in a long history of discrimination sanctioned or imposed by law.

The Black Lives Matter protests that took place contemporaneously with the coronavirus crisis likewise have brought renewed attention to structural inequalities that BIPOC individuals face in the criminal justice system and in American society more broadly. Again, these inequalities did not just emerge by happenstance, but rather are traceable to longstanding constitutional rules and doctrines. Some of these doctrines make it extraordinarily difficult to challenge laws and practices that have dramatically disparate impacts on racial and ethnic minorities. Notwithstanding the Fourteenth Amendment's command that no state shall deny any person the equal protection of the laws, the Supreme Court has long interpreted this language to mean only that government may not intentionally discriminate on the basis of categories such as race or ethnicity. Thus, in the absence of sufficient proof of discriminatory purpose, the fact that a government practice may have a racially discriminatory impact does not make it unconstitutional.

So what is the link between Free Exercise Clause and Equal Protection Clause jurisprudence? For the past several decades, both doctrinal areas have used similar analytic frameworks: if a facially neutral law does not intentionally discriminate on the basis of religion or a category like race, it does not violate either Clause simply because it imposes burdens on a religious or racial group. Arguments advanced in cases like Fulton have destabilized that symmetry by essentially recognizing disparate impact liability with respect to claims of religious discrimination. The core thesis of this Article is that any move to reinterpret the Free Exercise Clause in such a manner must come in tandem with a corresponding move to reinterpret the Equal Protection Clause to recognize disparate impact liability with respect to claims of racial and ethnic discrimination.

The Article develops this thesis in the following way. Part I traces the evolution of Free Exercise Clause jurisprudence from Smith to Fulton, with particular attention to the doctrinal shifts and realignments that have taken place among liberals and conservatives in the intervening years. Part II analyzes disparate impact jurisprudence under the Equal Protection Clause, drawing upon the lessons of the COVID-19 pandemic and the Black Lives Matter movement to sharpen the critique and highlight the injustices of the current state of the law. Finally, Part III argues that as fundamental as religious liberty surely is in the American constitutional tradition, racial and ethnic equality should be regarded as a dominant constitutional value as a matter of history, text, and structure. Consequently, the Equal Protection Clause should be interpreted and applied with at least as much force as the Free Exercise Clause going forward.

[. . .]

Recent Supreme Court jurisprudence has steadily privileged claims brought under the Free Exercise Clause relative to claims brought under the Equal Protection Clause. This has been accomplished by allowing religious plaintiffs to prevail in some cases by demonstrating that laws have an incidental effect on religious practice, even if the intention of those laws is not to discriminate against religion. BIPOC plaintiffs have not been afforded the same rights: laws that have an incidental disparate impact against racial minorities do not violate the Equal Protection Clause in the absence of discriminatory intent. To be sure, this privilege is not limited to plaintiffs bringing claims under the Free Exercise Clause alone. Claimants can also prevail without demonstrating discriminatory intent in some cases under the Free Speech Clause, such as where a content-neutral law incidentally burdens expressive conduct. Claimants can even prevail on the basis of discriminatory effects without demonstrating discriminatory intent under the Dormant Commerce Clause the seemingly obvious truth that “the right of people to be free of state action that discriminates against them because of race ... 'occupies a more protected position in our constitutional system than does the movement of cattle, fruit, steel and coal across state lines.”’

The point, then, of focusing on the Free Exercise Clause in this Article is not that it enjoys unique status compared to the Equal Protection Clause. Rather, the point is that the Supreme Court has shown a particular willingness to reconsider and strengthen the Free Exercise Clause of late--in part because of the light the COVID-19 pandemic and other recent events have thrown on the shortcomings of current doctrine. Some of those shortcomings may be genuine and may be ripe for reexamination. But the coronavirus crisis, the Black Lives Matter movement, and other developments in 2020-2021 have surely cast even harsher light on the glaring racial inequalities that persist throughout American law and society. Disparities that exist in public health, housing, employment, education, and criminal justice all have deep roots in legally mandated and/or sanctioned racial discrimination. The Supreme Court itself has played an important role throughout American history in enabling that discrimination and allowing its effects to endure. After the ratification of the Constitution, it was the Court that held that Black people were not citizens and could not partake of its protections. After the Fourteenth Amendment declared that all people born or naturalized in the United States were indeed citizens and entitled to the equal protection of the law, it was the Court that held “separate but equal” was constitutionally permissible. After Brown ruled that separate educational facilities were inherently unequal, it was the Court that held de facto school segregation and other disparate impacts did not violate the Equal Protection Clause in the absence of proof of discriminatory intent. And after Congress declared that the Voting Rights Act encompassed disparate impact liability, it was the Court that held that “small” disparate impacts were nevertheless acceptable and should not be “artificially magnified.” The list goes on and on.

It is long past time for the Supreme Court to correct the error of its ways. As a matter of constitutional history, text, and structure, racial equality is an equal if not dominant value relative to religious liberty. If the Court is going to revisit longstanding precedent and recognize disparate impact liability for religious objectors, it must do the same for racial minorities. It is time to give the Equal Protection Clause equal protection.

Associate Professor, Suffolk University Law School; A.B. Harvard College, J.D. Harvard Law School.