Abstract
In this Article, we argue that, as a matter of original meaning, the Fourteenth Amendment, standing alone, forbids all discrimination on the basis of religion just as it forbids all discrimination on the basis of race and gender. Our understanding of the Fourteenth Amendment is based on the research of Professor Melissa Saunders and Professor John Harrison, who have both argued that the Amendment outlawed class legislation, and on the research of Professor Steven Calabresi and Julia Rickert, who have argued that the Amendment also banned systems of caste. The historical evidence is overwhelming and persuasive. We argue that a ban on class legislation and systems of caste is broad in scope and that it includes a ban on all forms of discrimination on the basis of religion. Religion is a suspect classification such that discrimination on the basis of religion ought always to be subjected to strict scrutiny, which is strict in theory and fatal in fact. We reach this conclusion without regard to the original meaning of either the Establishment Clause or of the Free Exercise Clause either in 1791 or in 1868.
Recommended Citation
Steven G. Calabresi and Abe Salander,
Religion and the Equal Protection Clause: Why the Constitution Requires School Vouchers,
65 Fla. L. Rev.
909
(2013).
Available at: https://scholarship.law.ufl.edu/flr/vol65/iss4/1
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