An unfamiliar equality rule has become prominent in constitutional discourse. Promoted by scholars and judges in the context of the free exercise of religion, it has implications for other provisions that guarantee evenhandedness toward conduct.
Here is the essence of equal value. Suppose a government regulates protected activities while exempting other activities.
If its interest applies evenly to the regulated and unregulated categories, then it presumptively has devalued protected practices—it has treated them as less worthwhile than the exempted activities. The government can only carry its burden by showing that its regulation of the protected conduct is necessary to further a compelling interest.
Cases arising in the context of the coronavirus pandemic have provided the most recent and vivid illustrations. During the crisis, religious organizations were subject to limitations on gatherings. If other entities were exempted from those same limitations, and if those “essential” operations presented equivalent health risks, then government had devalued the religious reasons for gathering, on this theory.
In Tandon v. Newsom, the Supreme Court relied on equal value.
California had limited private gatherings to three households and it had required social distancing, limited duration, and mask wearing.
Those restrictions were challenged by a pastor and a congregant who wished to hold Bible study and worship services at private residences with members of more than three households.
After both lower courts turned away requests for interim relief, the Supreme Court issued an emergency injunction.
It held that regulations are presumptively unconstitutional “whenever they treat any comparable secular activity more favorably than religious exercise,” and it explained that comparability “must be judged against the asserted government interest that justifies the regulation at issue.”
Because California had permitted hair salons, retail stores, movie theaters, and restaurants to include more than three households at a time, it faced a presumption of invalidity that it could not rebut.
In reasoning this way, the Tandon Court applied what some are calling the “most favored nation” approach to religious discrimination.
Several characteristics distinguish the new equality. First, it does not require any showing of discriminatory purpose, object, or intent. California’s coronavirus regulations, for instance, were neutral in their purpose and still presumptively invalid as to private religious gatherings.
Second, it does not require a facial classification. Mere inclusion of religious actors in a regulation, while comparable nonreligious actors are not regulated, may be sufficient to trigger the presumption of invalidity.
California’s regulation applied to all private gatherings, regardless of religiosity, and it was enforced evenhandedly, for example.
Therefore, the approach differs from the constitutional rule for racial equality, which works only against classifications.
Finally, equal value may differ from a guarantee against disparate impact, though the difference is debatable. On the one hand, equal value appears to be less protective insofar as it only applies in situations where at least one category is exempted. So religious actors claiming a violation of equal value cannot prevail against a uniform limitation, even if they are disproportionately burdened in some sense.
On the other hand, equal value seems more protective than disparate impact doctrine in certain ways. Chiefly, religious actors may succeed regardless of whether they are disproportionately affected. In the coronavirus context, for instance, congregations might be closed in precise proportion to nonreligious organizations, yet they would still win a presumption of invalidity if some of the latter were allowed to open in the face of similar safety risks. For example, some lower courts ruled in favor of religious schools that were shuttered during the pandemic, even though secular schools likewise were closed, on the ground that other organizations remained open.
That is not straightforward disparate impact analysis.
It is worth noting, however, that the two approaches might overlap significantly and that little turns on whether equal value is completely distinct from disparate impact protection.
Regardless of its distinctiveness, should equal value be embraced? It does capture an intuition that the government can wrongly burden protected actors through disregard or devaluing. An ideal constitutional system might well guarantee against that kind of disdain of protected conduct, at least presumptively. And unelected judges plausibly have the capacity and competence to administer such a rule. Elected representatives may not be structurally incentivized to safeguard powerless groups, and they may fall into carelessness when operating under the pressure of exigency. Courts therefore might be necessary.
Consequently, some prominent liberal theorists are attracted to something like the principle of equal value.
For them, equality has been too weakly protected in too many constitutional contexts. The new approach also could help to correct the Supreme Court’s moments of excessive deference to elected officials during emergencies.
Korematsu stands as the classic example of a failure to check the government in the face of racial discrimination, and—in a disturbing juxtaposition—the travel ban decision provides the most consequential recent illustration of deference to the government despite undoubted religious hostility.
Equal value holds another attraction: It helps to safeguard liberty of conscience, which is underprotected by current constitutional law. In Employment Division v. Smith, the Court announced that the Free Exercise Clause would no longer protect against laws that were “neutral” and “generally applicable,” however much they might burden religious observance incidentally.
Today, that is the main rule for free exercise. Like many on the right and some on the left, I believe that this Smith rule is regrettable because it fails to shield those with minority beliefs on matters of conscience who are vulnerable to being overlooked by powerful political actors.
A companion piece evaluates a replacement.
Here, I only note that a requirement of equal value would provide ersatz liberty protection, if only in situations where a comparable actor happened to fall outside the regulation at issue.
So if there is a problem with equal value, it is not simply that free exercise doctrine is being overruled implicitly.
Weakening Smith is not necessarily unwelcome, and it can be done in the service of a principle that is defensible. Nor is the difficulty just that the new rule itself gives too little deference to elected officials who may be acting to save lives under emergency conditions such as a pandemic or a threat to national security. Judges can also err by deferring too much.
What does deserve close examination is the possibility that equal value is being administered in the service of a problematic political program. Administrators of the rule must make two key choices: whether to apply the new equality and how to apply it. Both require the exercise of judgment, but the latter entails a particularly contestable baseline determination. Are the actors who are exempt from the regulation comparable to the religious actors who are bringing the claim, with respect to the government’s interest? During the pandemic, for instance, state officials have maintained that businesses like grocery stores and gymnasiums are less dangerous to public health than congregations or schools because they are not designed as gathering places.
How are judges evaluating those determinations?
To gain perspective on that question, it is helpful to step back and consider whether equal value is being deployed in a patterned way across cases and contexts. When that is done, a troubling hypothesis emerges, namely that the new equality is being applied, and comparators are being found, in cases concerning religious groups disproportionately—and not all religious groups in any consistent way. In the travel ban decision,
for example, the Court failed to consider equal value. And that was telling because that situation was strikingly similar to the coronavirus context. The Court confronted a religious freedom challenge to an executive action concerning a threat to public safety in the travel ban case. It could have asked why the regulation did not apply evenly—why, for instance, the government exempted certain individuals in banned countries.
Yet the Court did not raise the question of whether religious travelers were being devalued.
That omission cannot be explained by deference to executive expertise in a situation of exigency, for judicial humility might reasonably be thought to pertain to executive efforts to manage a global health crisis.
Nor has the requirement of equal value been applied in the Court’s decisions concerning racial equality under the Equal Protection Clause.
And that is unlikely to change. Given its past decisions, the Supreme Court cannot be expected to temper, for example, its rejection of disparate impact liability under the Constitution by asking whether the important activities of racial groups have been evenly regulated.
Even within religious freedom law, the approach is asymmetric.
Equal value may have no exact conceptual analogue in the Establishment Clause, as explained below,
but to the degree that it does suggest a nonestablishment approach, none is forthcoming—no Justice is proposing a constitutional presumption against laws that place religious groups in exempted categories while restricting comparable actors.
On the other hand, equal value will be welcomed into freedom of expression law. Something like it has historically been applied in press cases and it can be expected to further influence speech rules on content discrimination.
Lopsidedness like that does little to dispel the impression of partiality. Moreover, the disparity is a social and political circumstance, not a legal or moral inevitability.
This Article concludes that although equal value holds real attraction as a matter of ideal theory, its implementation under nonideal conditions is another matter. Now is the time to consider the concept carefully. Equal value must be understood and evaluated, not only within religious freedom but across equality doctrines, and not only in principle but also in its practical implementation. Doing that suggests a disquieting possibility—that it is being deployed to support a program of religious preferentialism and laissez-faire constitutionalism that extends beyond free exercise and nonestablishment to free speech and equal protection. Religious groups, including the largest denominations, are winning cases, and private speakers are being protected against public regulation, while sexual and racial communities are left undefended by constitutional law against a naturalized stratification of social power.
In fact, the existing distribution itself is constitutionalized and thus insulated from democratization efforts. Equality law is being strained across doctrines to rationalize these results.
Part I accounts for the origins of the new equality. Its judicial visibility can be traced to an opinion by Justice Samuel Alito, written while he was sitting on the Third Circuit.
Among scholars, versions of equal value were proposed earlier in the 1990s, both by egalitarians
and by others.
Their arguments were taken up in the coronavirus cases and in dicta in Fulton v. City of Philadelphia.
Part II defends the view that the new equality differs from other forms of antidiscrimination found in existing constitutional law. Not only is it not reducible to the main free exercise rule, but it also diverges from the leading alternative. Part II also distinguishes disparate impact protection for nonwhite people, albeit with caveats. It ends by identifying two sorts of cases that could be seen as precursors, namely certain decisions in the fundamental interest branch of equal protection law and a line of speech opinions concerning press freedoms.
Part III explores two justifications for the rule of equal value. First, the model polices a form of unfairness. Not every situation where government regulates protected actors while exempting comparable others is unfair, but the heuristic does capture many laws that subordinate members of the political community or frustrate the exercise of basic liberties. Second, equal value provides vicarious political protection for powerless groups. You could think of this second point as an argument from positive political theory or constitutional political economy. Part III concludes by considering critiques of the principle, some of which are persuasive.
Part IV suggests ways in which the approach could improve antidiscrimination doctrines in other areas of constitutional law. These include the rule against favoring religious activities under the Establishment Clause, the prohibition of content discrimination under the Speech Clause, the protection for conduct closely associated with racial identity, and the due process right to reproductive freedom.
Part V turns to equal value’s actual administration, which has a perceptible shape. First, it has been deployed in some constitutional domains and not others. Cases concerning free exercise and freedom of speech are growth areas for the new equality, whereas those concerning nonestablishment and racial justice are not. Second, where equal value is applied, it requires comparators to be identified. The way that has been done in the Tandon line of cases contributes to the impression that the rule has been administered selectively. Inferring from such outcomes, the Part hypothesizes that the Roberts Court is pursuing a combination of preferentialism in religion cases and constitutionalization of existing power distributions in free speech and equal protection. And it is doing so at a moment in history when traditional religious actors are facing status contestation.
Part V closes by drawing out implications for judicial review.
Although the Court’s willingness to enforce constitutional rights during the coronavirus crisis has been received as a welcome corrective to its past deference to executive action,
we might learn something additional by comparing the coronavirus cases to the Court’s decisions during the early decades of the twentieth century. On one understanding of that period, the Court engaged in baseline manipulation in order to naturalize the existing distribution of wealth and entitlements and to impose a particular economic program on democratic politics. Today, too, the determinative factor may not be substantive law, nor the institutional design of courts, but rather the development and deployment of a politics that should then be evaluated on its own terms.
A brief conclusion acknowledges that similar pressures could affect any ideal approach to free exercise, if not in the same way.
Still, it is imperative to identify the particular interaction of political power and legal discourse here and now, so that we can understand what equal value is likely to entail under existing historical conditions.