Recent years have seen many high-profile cases involving enforcement of civil rights laws against religious groups who claim that they have been unfairly targeted. It is a basic principle of constitutional law that disparate enforcement of the law against a disfavored group—whether those of a particular race, religion, sex, ethnicity, or viewpoint—is problematic. In the context of religious discrimination, the First Amendment’s Free Exercise Clause protects generally against the enactment of laws that blatantly target particular religious practices, and the Fourteenth Amendment’s Equal Protection Clause protects generally against the law being applied differently against specific religious groups. But to this point, there has been little attention paid to the particular phenomenon of the use of civil rights laws, enforced disparately, as a tool for oppressing disfavored religious groups and suppressing disfavored religious practices.
This Note examines how selective enforcement claims operate under the Equal Protection Clause and the Free Speech Clause and attempts to build a framework for how such claims should be handled under the Free Exercise Clause. It constructs a spectrum of de jure religious discrimination and suggests a parallel to the spectrum of laws that implicate the Free Speech Clause. In particular, it argues that free exercise doctrine should explicitly handle “middle-of-the-spectrum” cases analogously to how they are handled in the free speech context—facially neutral laws that might otherwise receive reduced scrutiny should be given strict scrutiny when enforced disparately. Parties charged with civil rights violations (or violations of any law that burdens their religious practice) should have available, as an affirmative defense, the claim that the law is not being applied against similarly situated secular violators. Ultimately, the framework this Note chooses resembles selective prosecution claims brought under the Fourteenth Amendment, with the key difference that defendants raising selective enforcement claims under the Free Exercise Clause should not bear any burden to show discriminatory intent.
* Law Clerk to the Honorable Stephanos Bibas, U.S. Court of Appeals for the Third Circuit; Managing Editor, Stanford Law Review, Volume 71; J.D., Stanford Law School, 2019. All views expressed are my own.
Thanks to Jim Sonne of Stanford Law School’s Religious Liberty Clinic for supervising and guiding my development of this Note, and to Michael McConnell for inspiring my interest in the Religion Clauses. For their diligent editing efforts, thanks as well to SLR Member Editors Aly Bailey, Taylor Evensen, Sam Telzak, and Daphne Thompson. Special gratitude to Senior Editor Liza Starr for her careful shepherding of this Note from start to finish. And for their work on this Note and on Volume 72 generally, I acknowledge my former SLR colleagues: President Nicole Collins and Managing Editors Ethan Amaker, Lori Ding, and Nathan Lange. I know all too well the struggle.
Last and most of all, thanks to Liz Klein, without whom there would be nothing.