FREEDOM FROM RELIGIOUS DISCRIMINATION


A law or governmental decision which operates to discriminate against a religion--including a non-traditional religion--violates the Equal Protection and Non-Establishment Clauses. See Larson v. Valente, 456 U.S. 228 (1982). The Free Exercise Clause prohibits the government from discriminating against religion by restricting or burdening certain practices because of their religious nature. The Non-Establishment Clause prohibits the government from discriminating by favoring one religion over another. The Fourteenth Amendment Equal Protection Clause protects against discrimination by state and local governments on the basis of religion and other beliefs, as well as on the basis of ethnicity and gender. The Fourteenth Amendment says: "No state shall...deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV. This same prohibition applies to the federal government via the Due Process Clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497 (1954). Under the Equal Protection Clause, a law or governmental decision that discriminates on the basis of a fundamental right, such as freedom of religion, is subject to strict scrutiny by the courts. To pass strict scrutiny, the law or decision must constitute a narrowly-tailored means to meet a compelling governmental interest. See Police Department of Chicago v. Mosley, 408 U.S. 92 (1972).





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