Florida Law Review Founded 1948 VOLUME 65 JULY 2013 NUMBER 4 ARTICLES RELIGION AND THE EQUAL PROTECTION CLAUSE: WHY THE CONSTITUTION REQUIRES SCHOOL VOUCHERS Steven G. Calabresi∗ & Abe Salander† INTRODUCTION .................................................................................... 911 I. THE ORIGINAL MEANING OF THE FOURTEENTH AMENDMENT ......................................................................... 920 A. The Text and Structure of the Fourteenth Amendment .................................................................... 921 B. The Fourteenth Amendment’s Ban on Caste and Class Legislation ........................................................... 934 1. Definition of “Caste” and “Class Legislation” ....... 934 2. Historical Evidence of Opposition to Class Legislation .............................................................. 937 a. Evidence from Common Law and the Founding ................................................... 938 b. Evidence from State Constitutions Around the Time of the Founding ................................ 941 c. Evidence from the Antebellum Period ............ 943 d. Evidence from the History of the Ratification of the Fourteenth Amendment ........................ 951 e. Evidence from After Ratification of the Fourteenth Amendment .................................. 957 II. RELIGION AND THE FOURTEENTH AMENDMENT .................... 961 A. Religion as a Caste ........................................................ 961 B. Religion as a Class ........................................................ 965 ∗ Class of 1940 Research Professor of Law, Northwestern University. † JD 2012 Northwestern University School of Law. We dedicate this Article to Professors Michael W. McConnell and Akhil Reed Amar from both of whom we have learned so much about religious liberty. We would like to thank Stephen Presser for his helpful suggestions and comments and our research librarian Pegeen Bassett for her enormous help with this project. 909 910 FLORIDA LAW REVIEW [Vol. 65 C. The Fourteenth Amendment Automatically Protects Groups with Political Rights ......................................... 970 D. History of Religious Equality in America ...................... 975 1. Historical Persecution of Religion and the Founders’ Response ............................................... 976 2. State Constitutions and Court Cases Prior to 1868 .................................................................... 979 3. Religion and Abolition ........................................... 983 4. Recognizing the Need to Protect Religion ............. 986 E. Foreign Constitutions and Laws Guaranteeing Equality ......................................................................... 991 III. CLASS LEGISLATION AND MODERN CASE LAW ..................... 994 A. Class Legislation Doctrine ............................................ 994 B. Modern Case Law and Class Legislation.................... 1000 C. Carolene Products Footnote Four and Religion .......... 1005 IV. THE FREE EXERCISE AND ESTABLISHMENT CLAUSES AFTER THE FOURTEENTH AMENDMENT ............................... 1010 A. Free Exercise Clause ................................................... 1011 1. Originalism and the Free Exercise Clause ........... 1011 2. Role of the Anti-Discrimination Command of the Fourteenth Amendment on Free Exercise Questions .............................................................. 1013 B. Establishment Clause .................................................. 1025 1. Originalism and the Establishment Clause .......... 1025 2. Establishment Clause Questions After the Fourteenth Amendment ........................................ 1028 3. Voucher Programs do not Violate the Establishment Clause ........................................... 1032 V. THE BLAINE AMENDMENTS ................................................. 1034 A. The History of the Blaine Amendments ....................... 1035 B. The Supreme Court and the Blaine Amendments ........ 1039 C. Blaine Amendments Constitute Class Legislation ....... 1042 D. The Counterargument of the Blaine Amendments ....... 1045 VI. THE PUBLIC SCHOOL SYSTEM ............................................. 1047 A. Discrimination on the Basis of Religion ...................... 1048 B. Education Monopoly ................................................... 1059 C. The Solution: Endorse Pluralism ................................ 1068 CONCLUSION ...................................................................................... 1072 2013] RELIGION AND THE EQUAL PROTECTION CLAUSE 911 Statement of the Supreme Court in 1895: “Whenever a distinction is made in the burdens a law imposes or in the benefits it confers on any citizens by reason of their birth, or wealth, or religion, it is class legislation, and leads inevitably to oppression and abuses, and to general unrest and disturbance in society. It was hoped and believed that the great amendments to the Constitution which followed the late civil war had rendered such legislation impossible for all future time.” Pollock v. Farmers’ Loan & Trust 1 Co. INTRODUCTION 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.2 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.3 The exclusion of religion from the Fourteenth Amendment’s antidiscrimination command is all the more remarkable because the Supreme Court has used the Amendment’s antidiscrimination command to protect a wide variety of groups—most of whom are never mentioned elsewhere in the text of the Constitution. The Supreme Court has relied on the Amendment’s antidiscrimination command to strike down classifications based on gender,4 illegitimacy,5 physical disability,6 1. 157 U.S. 429, 596 (1895), superseded by U.S. CONST. amend. XVI, as recognized in South Carolina v. Baker, 485 U.S. 505, 524 (1988). 2. See Locke v. Davey, 540 U.S. 712, 725 (2004) (permitting a state to withhold scholarship money from individuals seeking a religious education, even though it provided scholarships to individuals seeking a secular education). 3. Kyle Duncan, Comment, Secularism’s Laws: State Blaine Amendments and Religious Persecution, 72 FORDHAM L. REV. 493, 493 (2003) (counting so-called “Blaine Amendments”); D.C. CODE § 44–715 (2012). 4. United States v. Virginia, 518 U.S. 515, 519 (1996) (The VMI Case); Craig v. Boren, 429 U.S. 190, 205 (1976); Frontiero v. Richardson, 411 U.S. 677, 690–91 (1973). 5. Trimble v. Gordon, 430 U.S. 762, 776 (1977); Gomez v. Perez, 409 U.S. 535, 538 (1973); Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 165 (1972). 6. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 435 (1985) (holding that denial of zoning permit to home for mentally retarded individuals failed rational basis test under the Equal Protection Clause). But see id. (Marshall, J., dissenting in part and concurring in the 912 FLORIDA LAW REVIEW [Vol. 65 alienage,7 citizenship,8 and sexual orientation.9 And in Skinner v. State of Oklahoma, the Supreme Court used the Fourteenth Amendment’s antidiscrimination command to strike down a statute compelling sterilization for larceny but not embezzlement.10 Although the Supreme Court once restricted its equal protection doctrine to “discrete and insular minorities,”11 it has recently extended equal protection rights to whites, limiting affirmative action programs and other efforts to aid racial minorities.12 Most recently, the Ninth Circuit used the Fourteenth Amendment’s antidiscrimination command to strike down California’s Proposition 8, banning same-sex marriages.13 Curiously, the Supreme Court has not granted the same antidiscrimination protection to religion despite explicit suggestions in the text of the Constitution itself that religion ought to always be treated as a suspect class. We think this outcome is clearly wrong. The Supreme Court’s current view is that the framers of the Fourteenth Amendment granted equal protection to groups that lacked civil or political rights in 1787 (racial minorities), as well as to groups that lacked civil and political rights in 1787 and 1868 but who would gain those rights in the future (e.g., women, immigrants, gays and lesbians), yet the Fourteenth Amendment denied equal protection to groups that did have both civil and political rights in both 1787 and 1868 (religious groups). Such an outcome is quite frankly wrong. A more likely construction of the Fourteenth Amendment is that it did guarantee equal protection for groups that already had civil and political rights prior to 1868, as well as to other groups newly recognized for protection starting in 1868. Thus, Michael A. Paulsen has quite rightly argued for an equal protection approach to the Establishment Clause,14 and Bernadette Meyler has argued quite rightly for an equal protection approach to the Free judgment) (arguing that mentally retarded individuals should be considered a suspect class due to history of discrimination and strict scrutiny analysis should apply). 7. Plyler v. Doe, 457 U.S. 202, 230 (1982) (holding that