Is Religion a Suspect Classification Independent of the First Amendment?

Earlier this week, I summarized and linked to the amicus brief on behalf of myself and nine other constitutional law scholars in the transgender athlete cases currently pending before the Supreme Court. In today's essay, I answer two questions I've received in response.

Question (1): Why is my name listed both on the cover and inside among the ten represented constitutional scholars?

Answer: Because I am acting in a dual capacity. I am one of the represented amici because the brief reflects my views as a scholar on the questions it addresses. I am listed on the cover as well because I worked as a lawyer on the brief--in the sense that I played a more substantial role in the writing and editing of the brief than I typically do when I am just one of the represented scholars. To be clear, I won't join a scholars' brief if I don't agree with it, but in many such circumstances, I'll review the draft and offer a few editorial suggestions. Occasionally one of the changes for which I'll ask is a deal breaker, so I have sometimes agreed to consider joining an amicus brief but then declined when I saw the way it was ultimately written. On this particular brief, I was the liaison between the Quinn Emanuel attorneys and the other scholars. Because I ended up doing a substantial portion of the conceptual work, editing, and writing, I thought it appropriate to appear as a lawyer as well as a party.

Question (2): Is religion really a suspect classification for equal protection purposes?

Answer: Our brief argues that, contrary to a claim by a few lower court judges and Justice Barrett (joined by Justice Thomas) in her concurrence in the Skrmetti case, a classification can be suspect for equal protection purposes but nonetheless not ascertainable at birth. In the brief (and more briefly still in the summary on the blog), we explain why an ascertainability-at-birth requirement makes little sense as a matter of logic, given the purpose and nature of heightened scrutiny for suspect classifications. We also give examples of other classifications that are suspect despite the fact that they are not ascertainable at birth.

Our leading example is religion. We note that this is appropriate ("Equal protection rightly forbids antisemitic laws as applied to converts to Judaism") and is enshrined in the Supreme Court's statement that launched modern equal protection doctrine: Footnote Four of United States v. Carolene Products (1938), in which the Court identified laws that discriminate against "religious . . . minorities" as deserving of heightened scrutiny (or, what amounts to the same thing, a relaxation of the presumption of constitutionality).

But wait. Some scholars have argued that the reason religious discrimination triggers heightened scrutiny is because the Free Exercise and Establishment Clauses of the First Amendment forbid religious discrimination directly, not because religious minorities necessarily satisfy the Carolene Products framework for suspect classification status. These scholars are mistaken.

For starters, it's clear that Justice Stone (who authored Carolene Products) and the Justices who joined his opinion (all but Butler, who concurred only in the result), thought that religion is (what would become known as) a suspect classification for equal protection purposes. How do we know? Because the Carolene Products footnote also indicates that heightened scrutiny applies "when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth." In Carolene Products, the Court wasn't listing religious minorities as protected simply in virtue of the First Amendment; it had already and separately accounted for it insofar as it received protection in virtue of appearing in the text of the Bill of Rights. The Carolene Products footnote thus indicates that the Court would have deemed religion suspect even if it were not mentioned in the Bill of Rights.

Meanwhile, the claim that religious discrimination triggers heightened scrutiny only because religion appears in the First Amendment is almost exactly backwards. The framers and ratifiers of the Constitution were very familiar with the European wars of religion in the sixteenth and seventeenth centuries. They were also acutely aware of how dangerous and divisive religious persecution could be--given the role of such persecution in motivating many of their European settler ancestors to come to America in the first place. A key reason they included the prohibition on religious tests in Article VI of the original Constitution and guaranteed free exercise while forbidding establishment in the First Amendment was that they wished to forbid government from engaging in religious discrimination. That same reason justifies treating religion as a suspect classification.

Does the foregoing account render equal protection and the First Amendment redundant with respect to religious discrimination? Yes, but so what? The right to be notified of the charges, the right to confront witnesses, and the right counsel in criminal cases are all specifically guaranteed by the Sixth Amendment but they are also elements of due process in such cases. As applied to the federal government (as to which the Fifth Amendment's Due Process Clause is not needed to incorporate the Sixth Amendment's guarantees because they are independently applicable to the federal government), those specifics are also redundant. But just as that fact doesn't make those Sixth Amendment guarantees any less essential to due process, so the fact that the First Amendment contains religion clauses that are incorporated against the states by the Fourteenth Amendment's Due Process Clause doesn't mean that religion isn't also a suspect classification under the Fourteenth Amendment's Equal Protection Clause.

The upshot is that the Carolene Products Court was right to regard religion as a paradigmatic suspect classification, and therefore ascertainability at birth is not a necessary feature of a suspect classification.