Religious Freedom v. Equal Protection

Clashing American Rights

by Kevin A. Johnson (Volume editor) Jennifer J. Asenas (Volume editor)
©2022 Textbook VIII, 422 Pages


This book examines significant clashes in First and Fourteenth Amendment issues in America. Any course in America that studies constitutional issues may benefit from focusing on a variety of issues raised in this book, including child torture and access to mandatory reporters, placing children into adoptive homes, prayer in public schools, religious tax exemptions, roadside memorials, military draft exemptions, access to contraceptive and family planning services, regulation of broadcast media, business exercises of religious freedom, issues in immigration detention, tribal sovereignty, and issues of political correctness and conspiracy theories. Whether you are studying these particular issues, reading the book in a legal studies course, or teaching a course in the First and/or Fourteenth Amendments, this book offers a way to dig into some of the most pressing issues in clashes between the rights as they are defined and negotiated in contemporary American life. The stakes are high as we navigate these clashes in doing the tough labor of democracy, both now and into the future.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the editors
  • About the book
  • This eBook can be cited
  • Table of Contents
  • Acknowledgments
  • 1. Religious Freedom v. Equal Protection: Clashing American Rights (Kevin A. Johnson and Jennifer J. Asenas)
  • Part I. Equality, Religious Freedom, and the Nation’s Youth
  • 2. Child Protection v. Parental Rights: Homeschooling and Abuse in the United States (Lindsey A. Sherrill)
  • 3. On the Dole for the Homeless Soul: Religious and Sex Discrimination by Sectarian Adoption Services (Pamela L. Morris and Susan H. Sarapin)
  • 4. The State of ‘Writing’ a Judicial Wrong: Renewing Legislative Hesed in Board of Education of Kiryas Joel Village School District v. Grumet (Adrienne E. Hacker Daniels and Sergio Peña)
  • 5. Flag on the Play: Equal Protection Clause, the Establishment Clause, and Prayer at School and School Sporting Events (M. Elizabeth Thorpe)
  • Part II. Equality and Government Endorsement of Religion
  • 6. Will Thomas Jefferson’s Wall Come a’ Tumblin’ Down? Propping Up the Johnson Amendment (Juliet Dee)
  • 7. Roadside Memorial Crosses: Highway to Healing or Crossroads of Conflict (Amanda Reid)
  • 8. The Recognition of Religiosity: Taze Gibson, Jehovah’s Witnesses, and the Selective Training and Service Act of 1940 (David R. Dewberry and Pat Arneson)
  • Part III. Equal Protection and the Religious Freedom Restoration Act
  • 9. Burwell v. Hobby Lobby (2014): How Rhetorical Strategies Invoking Religious Freedom Harm Women and LGBTQ+ Persons (Skye de Saint Felix)
  • 10. Burwell v. Hobby Lobby and the Supreme Court’s Three-Sphere Monte (Joseph Sery)
  • 11. Prejudice, Politics, and Privilege: The Evolution of Religious Freedom in the United States and Its Disparate Impact on Native Americans (Jason Zenor)
  • Part IV. Religious Freedom v. Equality in American Culture
  • 12. Equal Protection Excess: Visualizing the Effects of Christian Nationalism (Diana Isabel Martínez, Jamila Cupid, and Robert Mejia)
  • 13. If It Was Never About a Cake, What Was It About? How Members of the Public Framed the Masterpiece Cakeshop v. Colorado Civil Rights Commission Supreme Court Ruling (Ann E. Burnette and Rebekah L. Fox)
  • 14. Up in the Air: Media Access and Religious Freedom (Mark Ward Sr.)
  • 15. The War on Christmas: Conspiracy Rhetoric and Political Correctness (Logan Spence)
  • Contributors
  • Index
  • Series Index

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This book is the product of the labor of many people. We would like to thank all of those who have contributed to discussions we have had about the clashes between religious freedom and equal protection at academic conferences, panel presentations, informal conversations, and other forms of communication. We especially thank the authors for contributing their essays to this volume and for teaching us about even more of the clashes between these freedoms than we were aware of before beginning this study. We would also like to thank the people at Peter Lang Publishing for their guidance and assistance in the various stages of production and review.

We begin by acknowledging the people whose experiences became the legal facts of the cases and controversies explored in this book. For them, the clash between the First and Fourteenth Amendments has important and sometimes life altering consequences. We thank each of the authors for their contribution to this book and for educating us about situations we previously had no knowledge of, and lines of thought we had not yet considered. We would like to especially thank Dr. Mary Stuckey and the other series editors for their role in providing insightful and generous reviews of the collection. We thank artist Maia Tewai for creating a wonderful piece of artwork for the cover of the book. We are grateful for the people at Peter Lang Publishing who continued to offer their guidance and assistance in the various stages of production and review during the COVID-19 pandemic. We would like to thank the advisory board, the scholars, and the students of the Center for First Amendment Studies at California State University, Long Beach who have also contributed great insights into the project and we appreciate the help. We especially thank Dr. Craig R. Smith for providing feedback on the many ideas that we had for the book. Finally, a special thanks to our family and friends for providing a support network ←vii | viii→and for listening to our many conversations about equal protection and religious freedom. We hope that the content of this book will become topics of conversation among you and your friends, too.

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1. Religious Freedom v. Equal Protection: Clashing American Rights

Kevin A. Johnson and Jennifer J. Asenas

American revolutionaries declared the self-evident truths that “all men are created equal,” and that unalienable rights are “endowed by their Creator.” But are American rights self-evident anymore? Were they ever? Somewhere betwixt and between the Declaration of Independence, the Bill of Rights, Supreme Court interpretations, and government regulations, the “self-evident” nature of rights and their origin in a “creator” has been contested and interpreted by the humans who are the stewards of those endowed rights. These philosophical assertions that declared US independence function differently in practice and it is left to humans to determine to whom and how far rights extend. In this way, creator endowed rights have morphed into “human endowed” rights.

Based on individual perspectives, life experiences, and historical contexts, human interpretation makes the supposed self-evident nature of rights a negotiated matter. For example, “Creator” and “equality” have endured as terms central to American democratic life even as their status has shifted. The self-evident “Creator” has been negotiated in democratic life as a “sincerely” held religious belief and is closely aligned with the democratic negotiation of “equality” in American life. Those who believe in a “Creator” as self-evident are presumed equal to those who do not believe a “Creator” to be self-evident. The result? “Creator” is no longer presumed to be “self-evident.” The transformation from the self-evident into a belief has given rise to clashing American rights of equality and religious freedom. The rights remain deeply engrained in American cultural life, and are deeply contested in our politics.

The words “equality” and “religious freedom” stick to lived experiences in America. The terms themselves may be self-evident as they endure. At the ←1 | 2→same time, this book demonstrates the way cases that occupy those terms are far removed from the self-evident assumption. A guiding theme that runs throughout this book is that contested notions of “equality” and “religious freedom” are the product of intrinsically rhetorical phenomena. At a basic level, we believe that rhetoric is concerned with the study of persuasion and/as the contestation over meaning in human affairs. It is rooted in the study of phenomena that include: beliefs, pleasures, desires, urgencies, possibilities, potentialities, contingencies, logic and its excesses, changes, becoming, and timing. “Equality” and “religious freedom” are rhetorically contested in terms of their meaning. Different people are persuaded to think about these rights in different ways in different situations. People believe different things about these rights, and they take certain pleasures in the exercise of these rights. There are competing desires about what the rights ought to entail and different senses of urgency about when conflicts over these rights ought to be resolved in disputes. There are several possibilities, potentialities, and contingencies built into these rights as they change. The rights continually change in new iterations that are always already in the process of becoming as time unfolds. And yet, there is a certain consistency. So, we proceed in this chapter by examining the emergence, nature, and scope of “equality” and “religious freedom” that have come to be valued, contested, and conflicting terms in American life. We conclude this introductory chapter by sharing a preview of the chapters of this book. Each of the chapters focus on clashes that have emerged over “equality” and “religious freedom.”

The Ideal of Equality in the Fabric of American Rights

“Equal Justice Under Law.” These are the words etched into the front entrance to the Supreme Court of the United States. They mark the ultimate responsibility of the Court. Although enshrined in the building, equality is nowhere to be found in the original text of the Constitution, nor the Bill of Rights. From the natural rights perspective, equality is “self-evident,” and as such, unnecessary to appear in the Constitution because it is found in the “nature of man” preceding the justification for creating the United States in the first place.

Regardless of the absence of equality from the original Constitution and Bill of Rights, the principle is imprinted into the heart of so much of the Supreme Court’s jurisprudence. In other words, in its interpretation of the Constitution, the Court has ensured that equality pervades it. For example, the principle is found in the Court’s rulings on the First Amendment. In Rosenberger v. Rectors and Visitors of the University of Virginia, the Supreme ←2 | 3→Court ruled that the government must not engage in viewpoint discrimination: “When the government targets not subject matter but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” Viewpoint discrimination, in other words, is a form of administering legal favor of one viewpoint over another in a manner that runs counter to “equal justice under law.” When government targets a viewpoint, it treats that viewpoint unequally compared to viewpoints it does not target.

In fact, equality permeates decisions in nearly every Amendment (except maybe the Third Amendment) in the Bill of Rights. In the Second Amendment case of McDonald v. City of Chicago, the Court affirmed Senator James Nye’s idea that the Fourteenth Amendment was unnecessary because “blacks, as citizens, ‘have equal right to protection, and to keep and bear arms for self-defense.”1 In the Fourth Amendment case of Terry v. Ohio, the Court affirmed the equal right of every citizen to address questions to other persons and also to ignore an “interrogator and walk away.”2 In the Fifth Amendment case of Bolling v. Sharpe, the Court reasoned that equality is inherent in due process, “The ‘equal protection of the law’ is a more explicit safeguard of prohibited unfairness than ‘due process of law,’. . . But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.”3 In the Sixth Amendment case of Gideon v. Wainwright, the Court reasoned, “From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.”4 In the Seventh Amendment case of Parklane Hosiery Company v. Shore, the Court reasoned an equality rationale undergirding access to jury trials, “The petitioners have advanced no persuasive reason, however, why the meaning of the Seventh Amendment should depend on whether or not mutuality of parties is present. A litigant who has lost because of adverse factual findings in an equity action is equally deprived of a jury trial….”5 In the Eighth Amendment case of Furman v. Georgia, Justice Douglas wrote in his concurring opinion, “One cannot read this history without realizing that the desire for equality was reflected in the ban against ‘cruel and unusual punishments’ contained in the Eighth Amendment. In a Nation committed to equal protection of the laws there is no permissible ‘caste’ aspect of law enforcement.”6 In the Ninth Amendment case of Olff v. East Side Union High School District, the Court ruled, “The ←3 | 4→word ‘liberty’ is not defined in the Constitution. But . . . it includes at least the fundamental rights ‘retained by the people’ under the Ninth Amendment. . . . One’s hair style . . . is certainly fundamental in our constitutional scheme—a scheme designed to keep government off the backs of people. . . . I see no way of allowing a State to set hair styles for patrons of its schools, any more than it could establish a welfare system only for men with crew cuts and women with bobbed hair. Once these lines are drawn, a serious question of equal protection of the law is raised.”7 In Shelby County v. Holder, the Court upheld a “fundamental principle of equal sovereignty8 amongst states rights in the Tenth Amendment that prevents “disparate treatment of States”9 in federal law.

Taken together, the idea of “equality” is pervasive in the Bill of Rights as a matter of Supreme Court interpretations. Of course, the most explicit mention of equality that appears in the Constitution is in the Fourteenth Amendment. Taking effect in 1868, the Equal Protection Clause of the Fourteenth Amendment holds that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” This clause has been applied to several cases involving state and federal laws. In Brown v. Board of Education, the Court ruled on Fourteenth Amendment grounds that, “in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. . . .We have now announced that such segregation is a denial of the equal protection of the laws.”10 In Reed v. Reed, the Court invoked the Fourteenth Amendment to apply to sex discrimination, “By providing dissimilar treatment for men and women who are thus similarly situated, the challenged section violates the Equal Protection Clause.”11 And, in Obergefell v. Hodges, the Court ruled, “the right to marry is a fundamental right inherent in the liberty of the person, and under Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry.”12

Furthermore, even though the Fourteenth Amendment specifically applies only to the states and makes no mention of the federal government, the Supreme Court has ruled that the Fourteenth Amendment may be applied to understanding the constitutionality of federal laws. Specifically, in the previously mentioned case of Bolling v. Sharpe, the Court argued that the Equal Protection Clause of the Fourteenth Amendment may be incorporated into the Fifth Amendment’s Due Process Clause. The Court held that even though the Fourteenth Amendment does indeed only apply to the states, the intent of that Amendment may also define the way we think about what Due ←4 | 5→Process means in the Fifth Amendment. Put simply, if the federal government violates the standard required of states in the Fourteenth Amendment, then that also may be defined as a federal violation of Due Process.

The applicability of equal protection to the federal government may also have roots in the Constitution’s original meaning because of the overarching idea of fiduciary responsibility. Gary Lawson, Guy Seidman, and Robert Natelson argued that, “Federal officials are fiduciaries”13 based on the original intent. They wrote, “when the Constitution granted power to agents, it did so against the background of fiduciary law.”14 They continued, “the underlying principles—that agents must exercise their authority with care, honesty, and attention to the interests of those who employ them—are as much part of the Constitution as the basic principles of English grammar.”15 While grounding federal equal protection in a fiduciary foundation, they argue, one finds at the very least, “the same kinds of problems, conundrums, and value choices with which the law has wrestled for a century and a half when trying to understand the Fourteenth Amendment.”16

Whether it be the “self-evident” idea that “all men are created equal” in the Declaration of Independence, or the idea that equal protection is inherent in the fiduciary role of federal officials under their constitutional obligations, or the Supreme Court affirmations of equal protection pervading the Bill of Rights, or the application of the Equal Protection Clause of the Fourteenth Amendment, one thing appears certain—the idea of “equality” is built into the fabric of American rights. As the historical evolution of “equality” suggests, the cultural resonance of the word itself may, indeed, be self-evident (for it hasn’t vanished). What is far from self-evident is what that word will come to mean in ongoing cases that dispute either its privileged status in constitutional law when in conflict with other rights, and what it will mean to the lived experiences and realities of American life in the future.

The Ideal of Religious Freedom in the Fabric of American Rights

Just as equality permeates constitutional rights, the same might be said about religious freedom. Thomas Jefferson believed that religious freedom as tied to the “Creator” was “the most inalienable and sacred of all human rights.”17 The colonial and founding generations of America took their “Creator” seriously, and shared an almost exclusively Christian religious faith. As E. Gregory Wallace reminded us, “They believed that religion is unique because it entails duties owed to God. Their principal justifications for religious freedom rested ←5 | 6→upon the theological premise that God exists and is sovereign over both human government and the individual citizen.”18

The freedom of religion appears as the first of the five freedoms in the First Amendment in the Bill of Rights. As such, the freedom of religion is often referred to as our “first freedom.”19 And, like the idea of equality, religious freedom permeates the Constitution and the Bill of Rights, both as a matter of the Constitution’s text and as a matter of Supreme Court interpretations. In the founding era, “Freedom of religion was universally said to be an unalienable right; the status of other rights commonly found in state bills of rights, such as property or trial by jury, were more disputed and often considered derivative of civil society.”20 James Madison even went so far as to write that the “universal sovereign” precedes any claims of a civil society. In other words, “when the people vested power in the government over civil affairs, they necessarily reserved their unalienable right to the free exercise of religion, in accordance with the dictates of conscience.”21 Regardless of the differences in philosophy between framers like Jefferson and Madison, they agreed to begin the Bill of Rights with religious freedom, declaring that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

It may seem a bit peculiar that rationales for religious freedom would appear in Supreme Court cases concerning other rights in the Bill of Rights. Like equality, religious freedom found its way into the Second Amendment case of Printz v. United States. Justice Thomas analogized the government restraint on intervening in religious freedom as a rationale for showing similar restraint when it comes to gun rights. He wrote, “The Constitution, in addition to delegating certain enumerated powers to Congress, places whole areas outside the reach of Congress’ regulatory authority. The First Amendment, for example, is fittingly celebrated for preventing Congress from ‘prohibiting the free exercise’ of religion . . . The Second Amendment similarly appears to contain an express limitation on the Government’s authority.”22

The Third and Fourth Amendments are often woven together to form a general right to privacy. The freedom of religion often makes its way into these cases based on the idea that religion is one of those private affairs often exercised in the home, and that troops and police officers may not intrude on that space. For example, in citing both of these freedoms, the Court upheld precedents in Poe v. Ullman against police intrusion on teaching religious beliefs in the home, like those of pacificism. The Court ruled, “Mr. Justice Brandeis, writing of a statute which made ‘it punishable to teach (pacifism) in any place (to) a single person no matter what the relation of the parties may be,’ found such a ‘statute invades the privacy and freedom of the home. ←6 | 7→Father and mother may not follow the promptings of religious belief, of conscience or of conviction, and teach son or daughter the doctrine of pacificism. If they do, any officer may summarily arrest them.’”23 The Court concluded, “These decisions . . . ‘have respected the private realm of family life which the state cannot enter.”24 Religious freedom is, therefore, bound up with the right of privacy in the Third and Fourth Amendments because of the way it is exercised in the home.

Religious freedom is also implicated in the Fifth Amendment. For example, in U.S. v. Weldon, the Court reasoned that violating a person’s free exercise of religion may inherently violate, in part, a person’s Fifth Amendment rights rooted in the Due Process and Self-Incrimination Clauses. The Court noted, “Congress may make no law ‘prohibiting the free exercise’ of religion, it may not enter the field through investigation and probe the minds of witnesses as to whether they go to church or to the confessional regularly, why they chose this church rather than that one, etc.”25 Even if Congress did make a law enabling the violation of that free exercise, not only would that law be unconstitutional, but the person who would be approached in their religious place of worship may exercise their religious freedom by, for example, confessing to a priest while also exercising their Fifth Amendment right against self-incrimination and not confessing to the congressionally authorized investigators.26

Religious freedom has been an issue in several constitutional questions in federal and state courts as it relates to the Sixth through Tenth Amendments. For example, in People v. Gilliam, the court ruled that the defendant’s Sixth Amendment rights were violated when the lower court asked the defendant to choose between exercising his religious freedom to attend religious services on the sabbath, or to attend his voir dire for his case.27 In the Seventh Amendment case of United States v. Hillyard, the court ruled in favor of a member of the Jehovah’s Witnesses who objected on religious grounds to fulfilling their jury duty obligation (rooted in the court’s obligation to provide a jury under the Seventh Amendment).28 In the case of Robbins v. Robertson, the court ruled that a violation of religious freedom may inherently be an Eighth Amendment violation in certain cases involving religious dietary requirements in the prison context, “by asserting that the only way he could comply with the dictates of his religion was to accept a nutritionally inadequate diet—logically suggests that this same assertion would give rise to an Eighth Amendment claim. That being so, and having reversed the district court’s dismissal of the First Amendment claim, we are also obliged to reverse the dismissal of the Eighth Amendment claim.”29 In City of Wadsworth v. Owens, the court ruled that a curfew restricting minors from exercising ←7 | 8→their religious freedom to attend midnight mass was evidence of abridging the Ninth Amendment right “to move freely, without fear of governmental restriction or invasion . . . [T]‌his right is extended to minors and that before this right may be abridged, the state must show a compelling state interest.”30


VIII, 422
ISBN (Hardcover)
ISBN (Softcover)
Publication date
2022 (October)
First and Fourteenth Amendments Adoption Public and Home Schools Memorials Tax Exemptions Military Draft Affordable Care Act Broadcast Media Regulation Masterpiece Cakeshop Immigration Tribal Sovereignty Political Correctness Religious Freedom v. Equal Protection Clashing American Rights Kevin A. Johnson Jennifer J. Asenas
New York, Bern, Berlin, Bruxelles, Oxford, Wien, 2022. VIII, 422 pp., 6 b/w ill.

Biographical notes

Kevin A. Johnson (Volume editor) Jennifer J. Asenas (Volume editor)

Kevin A. Johnson (Ph.D., University of Texas at Austin) is Professor of Communication Studies and Director of the Center for First Amendment Studies at California State University, Long Beach. He is Editor of the National Communication Association’s (NCA) Communication and Democracy journal and served as Editor of NCA’s First Amendment Studies journal. Jennifer J. Asenas (Ph.D., University of Texas at Austin) is Chair and Professor of Communication Studies and Director of Rhetorical Research for the Center for First Amendment Studies at California State University, Long Beach. She is Book Review Editor of NCA’s Communication and Democracy journal and served as Book Review Editor of NCA’s First Amendment Studies journal.


Title: Religious Freedom v. Equal Protection