Publication Date

2025

Journal

Columbia Law Review

Abstract

The Supreme Court has recently adopted a new rule of religious equality: Laws unconstitutionally discriminate against religion when they deny religious exemptions but provide secular exemptions that undermine the law’s interests to the same degree as would a religious exemption. All the Justices and a cadre of scholars have agreed in principle with this approach to religious equality. This Essay argues that this new rule of religious equality is inherently unworkable, in part because it turns on treating that which is religious the same as its secular “comparators.” But religion is not comparable to anything neither in terms of its essence nor its value. The current doctrine assumes that “religion” is always at least as valuable as all that is “secular”—that is, that religion qua religion is as valuable as, and thus must always be treated as well as, all that is simply “not religion.” This assumption lacks both conceptual coherence and a normative basis. It also renders religious “equality” a contradiction in terms as it establishes not religious equality, but religious superiority.

Volume

125

Issue

2

First Page

453

Last Page

530

Publisher

Columbia Law School

Keywords

First Amendment, Equality, Free Exercise of Religion, Anti-discrimination, Law and Religion

Disciplines

First Amendment | Law

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