Praying for America: The Anti-Theocracy and Equal Status Principles of the Free Exercise, Equal Protection and Establishment Clauses

Authors

Corey Brettschneider

Abstract

In this essay I argue that the Constitution’s Equal Protection, Establishment, and Free Exercise Clauses share common principled limits on the role that religion can play in public life. Specifically, drawing on the free-exercise case of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the equal protection case of Romer v. Evans, and the establishment clause case of Town of Greece v. Galloway, I propose two principles to describe the proper place of religious justification as a basis for law. The first requirement is that in addition to any religious reasons for laws, the state must have secular reasons available that can appeal to non-religious citizens. I call this the “anti-theocracy principle.” The second, “equal status principle” states that even religious justifications that have secular equivalents must respect the equal status of persons in a democracy regardless of their race, gender or LGBTQ identity. In addition to the limits the anti-theocracy and equal status principles place on legitimate law making, I also argue they also limit state expression. Throughout the piece I draw from the ideal of “public reason” found in the political theory of John Locke and John Rawls. In addition to clarifying the Constitution’s understanding of the role of religion in justifying law and in government sponsored expression, my aim is also to demonstrate how an understanding of public reason can be operationalized in constitutional cases across the Free Exercise, Equal Protection, and Establishment Clauses. I, therefore, demonstrate a common role for public reason across three fundamental parts of the Constitution often thought distinct.

Rights

© 2022 Brigham Young University Law Review

Recommended Citation

Corey Brettschneider, Praying for America: The Anti-Theocracy and Equal Status Principles of the Free Exercise, Equal Protection and Establishment Clauses, 47 BYU L. Rev. 1127 (2022).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol47/iss4/6