Ask anyone whether the Constitution permits discrimination on the basis of religion, and the response will undoubtedly be no. Yet the modern Supreme Court has not recognized that the antidiscrimination command of the Fourteenth Amendment protects religion in the same way that the Amendment protects against discrimination on the basis of race or gender. In fact, the Supreme Court has permitted the legislature to facially discriminate against religion in funding programs. To make matters worse, thirty-seven state constitutions and the District of Columbia’s Code openly discriminate on the basis of religion in so-called Blaine Amendments.
Steven G. Calabresi and Abe Salander,
Religion and the Equal Protection Clause: Why the Constitution Requires School Vouchers,
65 Fla. L. Rev.
Available at: http://scholarship.law.ufl.edu/flr/vol65/iss4/1