Race, Religion, and Cultural Identity: Reconciling the Jurisprudence of Race and Religion

Indiana Law Journal

Volumn 73, Issue 1, 1997, Pages 119-184

  Yang, Tseming ^a,b,c  

^a United States Department of Justice   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

^c HARVARD COLLEGE   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0031321033     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (389)

1. In this Article I use the terms "minority" and "outsider group" interchangeably.
2. 512 U.S. 687, 728 (1994) (Kennedy, J., concurring) ("[G]overnment may not segregate people on account of their race, [as] . . . it may not segregate on the basis of religion"); see Colloquium on Law, Religion, and Culture, 26 CUMB. L. REV. 1 (1995-1996) (devoting entire issue to the religion analogue of racial segregation raised in Kiryas Joel); Abner S. Greene, Kiryas Joel and Two Mistakes About Equality, 96 COLUM. L. REV. 1, 57-83 (1996) (arguing that in Kiryas Joel, the Supreme Court took an approach to religious accommodation more in line with its stance on affirmative action); see also Jesse H. Choper, Religion and Race Under the Constitution: Similarities and Differences, 79 CORNELL L. REV. 491 (1994).
3. 512 U.S. 687, 728 (1994) (Kennedy, J., concurring) ("[G]overnment may not segregate people on account of their race, [as] . . . it may not segregate on the basis of religion"); see Colloquium on Law, Religion, and Culture, 26 CUMB. L. REV. 1 (1995-1996) (devoting entire issue to the religion analogue of racial segregation raised in Kiryas Joel); Abner S. Greene, Kiryas Joel and Two Mistakes About Equality, 96 COLUM. L. REV. 1, 57-83 (1996) (arguing that in Kiryas Joel, the Supreme Court took an approach to religious accommodation more in line with its stance on affirmative action); see also Jesse H. Choper, Religion and Race Under the Constitution: Similarities and Differences, 79 CORNELL L. REV. 491 (1994).
4. 512 U.S. 687, 728 (1994) (Kennedy, J., concurring) ("[G]overnment may not segregate people on account of their race, [as] . . . it may not segregate on the basis of religion"); see Colloquium on Law, Religion, and Culture, 26 CUMB. L. REV. 1 (1995-1996) (devoting entire issue to the religion analogue of racial segregation raised in Kiryas Joel); Abner S. Greene, Kiryas Joel and Two Mistakes About Equality, 96 COLUM. L. REV. 1, 57-83 (1996) (arguing that in Kiryas Joel, the Supreme Court took an approach to religious accommodation more in line with its stance on affirmative action); see also Jesse H. Choper, Religion and Race Under the Constitution: Similarities and Differences, 79 CORNELL L. REV. 491 (1994).
5. See Neil Gotanda, A Critique of "Our Constitution Is Color-Blind", 44 STAN. L. REV. 1, 64-68 (1991) (suggesting treatment of racial affirmative action along religious accommodation lines); David E. Steinberg, Religious Exemption as Affirmative Action, 40 EMORY L.J. 77 (1991) (suggesting treatment of religious accommodation along racial affirmative action lines).
6. See Neil Gotanda, A Critique of "Our Constitution Is Color-Blind", 44 STAN. L. REV. 1, 64-68 (1991) (suggesting treatment of racial affirmative action along religious accommodation lines); David E. Steinberg, Religious Exemption as Affirmative Action, 40 EMORY L.J. 77 (1991) (suggesting treatment of religious accommodation along racial affirmative action lines).
7. In this Article I use the terms "race" and "skin color" to designate a cultural or ethnic group. See, e.g., Ozawa v. United States, 260 U.S. 178, 197 (1922) (illustrating the use of terms denoting skin color to designate cultural identity). In its strictly scientific conception, race (and skin color) has had little more importance than other particular physical characteristics, such as hair color or height. Thus it is not as a term designating certain primary physiological phenotypes of humans but rather as a cultural and social concept, and in its societal and legal consequences, that "race" has been important in American society. In that respect, it has acquired a meaning entirely independent of its scientific moorings. See Gotanda, supra note 3, at 28-34 & n.116 (discussing Justice White's description of race in Saint Francis College v. Al Khazraji, 481 U.S. 604 (1987)). For a discussion of the social conceptions of race that have been significant in American history, see id. at 36-40, 56-59. See also infra text accompanying notes 61-65.
8. Here, I consider the functional aspects of religion as a source of group identity and social cohesion. There are of course important cognitive (explanations of mysterious events), and emotional human need for order and assurance against forces beyond human control - aspects of religion. See generally J. MILTON YINGER, RELIGION, SOCIETY AND THE INDIVIDUAL 52-56 (1957). While I do not discuss these aspects separately, they are part and parcel of the cultural value framework that religion contributes to. See infra note 50 and accompanying discussion. To the extent that religious beliefs are not closely related to a person's sense of identity, belonging, or cultural framework, such beliefs are much more like ordinary opinions or other beliefs that are also protected under the Free Speech Clause. See infra notes 98-99 and accompanying text. In that sense, religious beliefs that are held less deeply or are less central to an individual carry less of the special importance that is oftentimes associated with religion. Of course, my intention in this Article is not to engage in an inquiry into what is or is not part of a religion; rather, it is to assess those qualities commonly associated with religion that make it so different from other beliefs in their significance to individuals.
9. See MILTON M. GORDON, ASSIMILATION IN AMERICAN LIFE 1-7 (1964).
10. As a historical matter, religious discrimination during colonial and early postrevolutionary times bore many of the same hallmarks as racial discrimination. See discussion infra Part I.A; see also Choper, supra note 2, at 492 (pointing out that religion and race have been "the object of public (and private) stereotyping, stigma, subordination, and persecution in strikingly similar ways"); Robert A. Destro, "By What Right?": The Sources and Limits of Federal Court and Congressional Jurisdiction Over Matters "Touching Religion", 29 IND. L. REV. 1, 50-51 (1995).
11. The inability to debate such differences in a rational manner is characteristic of such differences.
12. For instance, it may be difficult to determine whether discrimination and stereotyping of Middle Eastern Muslims or anti-Semitism is based on racial or religious prejudice. See infra notes 83-85 and accompanying text; discussion infra Part I.B.2.
13. Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 728 (1994) (Kennedy, J., concurring).
14. Compare Larson v. Valente, 456 U.S. 228, 246 (1982) (prohibiting segregation on the basis of race or religion), with Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 213-17 (1995). Of course, on the surface, race and religion appear to deal with entirely different personal attributes - race has been connected to unchangeable, involuntary personal characteristics such as skin color and genetics, whereas religion appears to concern itself with voluntary choices of one's belief system. However, the voluntariness distinction is of little use when one considers that many religious practitioners take their faith not as a matter of choice but of command from their god and thus are as little a master of their beliefs as they are of their race. In our society, race and religion occupy places of similar importance because both greatly affect an individual's self-identity.
15. The salience of race can be experienced in everyday life; however, statistical support also exists. For instance, pursuant to the Federal Bureau of Investigation's hate crime statistics for the years 1992 to 1994, hate crimes motivated by race (including "antiwhite" bias) and ethnicity/national origin constituted 70-72% of all reported hate crimes, whereas religion-motivated hate crimes made up approximately 17-18% of such reported crimes. See CRIMINAL JUSTICE INFO. SERVS. DIV., U.S. DEP'T OF JUSTICE, 1994 HATE CRIMES STATISTICS 7 (1994); CRIMINAL JUSTICE INFO. SERVS. DIV., U.S. DEP'T OF JUSTICE, 1993 HATE CRIMES STATISTICS (REVISED) 9 (1993); CRIMINAL JUSTICE INFO. SERVS. DIV., U.S. DEP'T OF JUSTICE, 1992 HATE CRIMES STATISTICS 9 (1992). However, of religion-motivated bias crimes, the vast majority (over 85%) of all such incidents were anti-Jewish. See id. If such anti-Jewish bias crimes are classified as ethnic bias crimes, see infra Part I.B.2, the proportion of race/ethnicity/national-origin-motivated crimes climbs to over 85%, and religion-motivated crime drops to about 2%. The remainder of reported hate crimes consists of crimes motivated by sexual orientation (approximately 11%). See also Christopher L. Eisgruber, Madison's Wager: Religious Liberty in the Constitutional Order, 89 NW. U. L. REV. 347, 373 (1995) (discussing the dangers of religious factions to republican politics); William R. Tamayo, When the "Coloreds" Are Neither Black nor Citizens: The United States Civil Rights Movement and Global Migration, 2 ASIAN L.J. 1, 12-25 (1995) (discussing discrimination between immigrants and the "native" class and within immigrant groups); cf. Bob Jones Univ. v. United States, 461 U.S. 574 (1983) (holding that a compelling interest in eradicating racial discrimination trumps a religious university's free exercise claims); JOHN WILSON, RELIGION IN AMERICAN SOCIETY 319-21 (1978) (arguing that religious differences among Protestants, Catholics, and Jews are declining). Of course, that does not mean that religious discrimination is no longer a problem. See U.S. COMM'N ON CIVIL RIGHTS, RELIGIOUS DISCRIMINATION (1979) (discussing the lack of attention given to religious discrimination issues). However, religious discrimination now appears to have a heavier impact on racial minority groups. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (invalidating city ordinance which prohibited religious sacrifice as unduly burdensome and not narrowly tailored to accomplish asserted government interest) In this respect, the lines of racial and religious discrimination tend to blur, and their effects overlap.
16. The salience of race can be experienced in everyday life; however, statistical support also exists. For instance, pursuant to the Federal Bureau of Investigation's hate crime statistics for the years 1992 to 1994, hate crimes motivated by race (including "antiwhite" bias) and ethnicity/national origin constituted 70-72% of all reported hate crimes, whereas religion-motivated hate crimes made up approximately 17-18% of such reported crimes. See CRIMINAL JUSTICE INFO. SERVS. DIV., U.S. DEP'T OF JUSTICE, 1994 HATE CRIMES STATISTICS 7 (1994); CRIMINAL JUSTICE INFO. SERVS. DIV., U.S. DEP'T OF JUSTICE, 1993 HATE CRIMES STATISTICS (REVISED) 9 (1993); CRIMINAL JUSTICE INFO. SERVS. DIV., U.S. DEP'T OF JUSTICE, 1992 HATE CRIMES STATISTICS 9 (1992). However, of religion-motivated bias crimes, the vast majority (over 85%) of all such incidents were anti-Jewish. See id. If such anti-Jewish bias crimes are classified as ethnic bias crimes, see infra Part I.B.2, the proportion of race/ethnicity/national-origin-motivated crimes climbs to over 85%, and religion-motivated crime drops to about 2%. The remainder of reported hate crimes consists of crimes motivated by sexual orientation (approximately 11%). See also Christopher L. Eisgruber, Madison's Wager: Religious Liberty in the Constitutional Order, 89 NW. U. L. REV. 347, 373 (1995) (discussing the dangers of religious factions to republican politics); William R. Tamayo, When the "Coloreds" Are Neither Black nor Citizens: The United States Civil Rights Movement and Global Migration, 2 ASIAN L.J. 1, 12-25 (1995) (discussing discrimination between immigrants and the "native" class and within immigrant groups); cf. Bob Jones Univ. v. United States, 461 U.S. 574 (1983) (holding that a compelling interest in eradicating racial discrimination trumps a religious university's free exercise claims); JOHN WILSON, RELIGION IN AMERICAN SOCIETY 319-21 (1978) (arguing that religious differences among Protestants, Catholics, and Jews are declining). Of course, that does not mean that religious discrimination is no longer a problem. See U.S. COMM'N ON CIVIL RIGHTS, RELIGIOUS DISCRIMINATION (1979) (discussing the lack of attention given to religious discrimination issues). However, religious discrimination now appears to have a heavier impact on racial minority groups. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (invalidating city ordinance which prohibited religious sacrifice as unduly burdensome and not narrowly tailored to accomplish asserted government interest) In this respect, the lines of racial and religious discrimination tend to blur, and their effects overlap.
17. The salience of race can be experienced in everyday life; however, statistical support also exists. For instance, pursuant to the Federal Bureau of Investigation's hate crime statistics for the years 1992 to 1994, hate crimes motivated by race (including "antiwhite" bias) and ethnicity/national origin constituted 70-72% of all reported hate crimes, whereas religion-motivated hate crimes made up approximately 17-18% of such reported crimes. See CRIMINAL JUSTICE INFO. SERVS. DIV., U.S. DEP'T OF JUSTICE, 1994 HATE CRIMES STATISTICS 7 (1994); CRIMINAL JUSTICE INFO. SERVS. DIV., U.S. DEP'T OF JUSTICE, 1993 HATE CRIMES STATISTICS (REVISED) 9 (1993); CRIMINAL JUSTICE INFO. SERVS. DIV., U.S. DEP'T OF JUSTICE, 1992 HATE CRIMES STATISTICS 9 (1992). However, of religion-motivated bias crimes, the vast majority (over 85%) of all such incidents were anti-Jewish. See id. If such anti-Jewish bias crimes are classified as ethnic bias crimes, see infra Part I.B.2, the proportion of race/ethnicity/national-origin-motivated crimes climbs to over 85%, and religion-motivated crime drops to about 2%. The remainder of reported hate crimes consists of crimes motivated by sexual orientation (approximately 11%). See also Christopher L. Eisgruber, Madison's Wager: Religious Liberty in the Constitutional Order, 89 NW. U. L. REV. 347, 373 (1995) (discussing the dangers of religious factions to republican politics); William R. Tamayo, When the "Coloreds" Are Neither Black nor Citizens: The United States Civil Rights Movement and Global Migration, 2 ASIAN L.J. 1, 12-25 (1995) (discussing discrimination between immigrants and the "native" class and within immigrant groups); cf. Bob Jones Univ. v. United States, 461 U.S. 574 (1983) (holding that a compelling interest in eradicating racial discrimination trumps a religious university's free exercise claims); JOHN WILSON, RELIGION IN AMERICAN SOCIETY 319-21 (1978) (arguing that religious differences among Protestants, Catholics, and Jews are declining). Of course, that does not mean that religious discrimination is no longer a problem. See U.S. COMM'N ON CIVIL RIGHTS, RELIGIOUS DISCRIMINATION (1979) (discussing the lack of attention given to religious discrimination issues). However, religious discrimination now appears to have a heavier impact on racial minority groups. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (invalidating city ordinance which prohibited religious sacrifice as unduly burdensome and not narrowly tailored to accomplish asserted government interest) In this respect, the lines of racial and religious discrimination tend to blur, and their effects overlap.
18. The salience of race can be experienced in everyday life; however, statistical support also exists. For instance, pursuant to the Federal Bureau of Investigation's hate crime statistics for the years 1992 to 1994, hate crimes motivated by race (including "antiwhite" bias) and ethnicity/national origin constituted 70-72% of all reported hate crimes, whereas religion-motivated hate crimes made up approximately 17-18% of such reported crimes. See CRIMINAL JUSTICE INFO. SERVS. DIV., U.S. DEP'T OF JUSTICE, 1994 HATE CRIMES STATISTICS 7 (1994); CRIMINAL JUSTICE INFO. SERVS. DIV., U.S. DEP'T OF JUSTICE, 1993 HATE CRIMES STATISTICS (REVISED) 9 (1993); CRIMINAL JUSTICE INFO. SERVS. DIV., U.S. DEP'T OF JUSTICE, 1992 HATE CRIMES STATISTICS 9 (1992). However, of religion-motivated bias crimes, the vast majority (over 85%) of all such incidents were anti-Jewish. See id. If such anti-Jewish bias crimes are classified as ethnic bias crimes, see infra Part I.B.2, the proportion of race/ethnicity/national-origin-motivated crimes climbs to over 85%, and religion-motivated crime drops to about 2%. The remainder of reported hate crimes consists of crimes motivated by sexual orientation (approximately 11%). See also Christopher L. Eisgruber, Madison's Wager: Religious Liberty in the Constitutional Order, 89 NW. U. L. REV. 347, 373 (1995) (discussing the dangers of religious factions to republican politics); William R. Tamayo, When the "Coloreds" Are Neither Black nor Citizens: The United States Civil Rights Movement and Global Migration, 2 ASIAN L.J. 1, 12-25 (1995) (discussing discrimination between immigrants and the "native" class and within immigrant groups); cf. Bob Jones Univ. v. United States, 461 U.S. 574 (1983) (holding that a compelling interest in eradicating racial discrimination trumps a religious university's free exercise claims); JOHN WILSON, RELIGION IN AMERICAN SOCIETY 319-21 (1978) (arguing that religious differences among Protestants, Catholics, and Jews are declining). Of course, that does not mean that religious discrimination is no longer a problem. See U.S. COMM'N ON CIVIL RIGHTS, RELIGIOUS DISCRIMINATION (1979) (discussing the lack of attention given to religious discrimination issues). However, religious discrimination now appears to have a heavier impact on racial minority groups. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (invalidating city ordinance which prohibited religious sacrifice as unduly burdensome and not narrowly tailored to accomplish asserted government interest) In this respect, the lines of racial and religious discrimination tend to blur, and their effects overlap.
19. The salience of race can be experienced in everyday life; however, statistical support also exists. For instance, pursuant to the Federal Bureau of Investigation's hate crime statistics for the years 1992 to 1994, hate crimes motivated by race (including "antiwhite" bias) and ethnicity/national origin constituted 70-72% of all reported hate crimes, whereas religion-motivated hate crimes made up approximately 17-18% of such reported crimes. See CRIMINAL JUSTICE INFO. SERVS. DIV., U.S. DEP'T OF JUSTICE, 1994 HATE CRIMES STATISTICS 7 (1994); CRIMINAL JUSTICE INFO. SERVS. DIV., U.S. DEP'T OF JUSTICE, 1993 HATE CRIMES STATISTICS (REVISED) 9 (1993); CRIMINAL JUSTICE INFO. SERVS. DIV., U.S. DEP'T OF JUSTICE, 1992 HATE CRIMES STATISTICS 9 (1992). However, of religion-motivated bias crimes, the vast majority (over 85%) of all such incidents were anti-Jewish. See id. If such anti-Jewish bias crimes are classified as ethnic bias crimes, see infra Part I.B.2, the proportion of race/ethnicity/national-origin-motivated crimes climbs to over 85%, and religion-motivated crime drops to about 2%. The remainder of reported hate crimes consists of crimes motivated by sexual orientation (approximately 11%). See also Christopher L. Eisgruber, Madison's Wager: Religious Liberty in the Constitutional Order, 89 NW. U. L. REV. 347, 373 (1995) (discussing the dangers of religious factions to republican politics); William R. Tamayo, When the "Coloreds" Are Neither Black nor Citizens: The United States Civil Rights Movement and Global Migration, 2 ASIAN L.J. 1, 12-25 (1995) (discussing discrimination between immigrants and the "native" class and within immigrant groups); cf. Bob Jones Univ. v. United States, 461 U.S. 574 (1983) (holding that a compelling interest in eradicating racial discrimination trumps a religious university's free exercise claims); JOHN WILSON, RELIGION IN AMERICAN SOCIETY 319-21 (1978) (arguing that religious differences among Protestants, Catholics, and Jews are declining). Of course, that does not mean that religious discrimination is no longer a problem. See U.S. COMM'N ON CIVIL RIGHTS, RELIGIOUS DISCRIMINATION (1979) (discussing the lack of attention given to religious discrimination issues). However, religious discrimination now appears to have a heavier impact on racial minority groups. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (invalidating city ordinance which prohibited religious sacrifice as unduly burdensome and not narrowly tailored to accomplish asserted government interest) In this respect, the lines of racial and religious discrimination tend to blur, and their effects overlap.
20. The salience of race can be experienced in everyday life; however, statistical support also exists. For instance, pursuant to the Federal Bureau of Investigation's hate crime statistics for the years 1992 to 1994, hate crimes motivated by race (including "antiwhite" bias) and ethnicity/national origin constituted 70-72% of all reported hate crimes, whereas religion-motivated hate crimes made up approximately 17-18% of such reported crimes. See CRIMINAL JUSTICE INFO. SERVS. DIV., U.S. DEP'T OF JUSTICE, 1994 HATE CRIMES STATISTICS 7 (1994); CRIMINAL JUSTICE INFO. SERVS. DIV., U.S. DEP'T OF JUSTICE, 1993 HATE CRIMES STATISTICS (REVISED) 9 (1993); CRIMINAL JUSTICE INFO. SERVS. DIV., U.S. DEP'T OF JUSTICE, 1992 HATE CRIMES STATISTICS 9 (1992). However, of religion-motivated bias crimes, the vast majority (over 85%) of all such incidents were anti-Jewish. See id. If such anti-Jewish bias crimes are classified as ethnic bias crimes, see infra Part I.B.2, the proportion of race/ethnicity/national-origin-motivated crimes climbs to over 85%, and religion-motivated crime drops to about 2%. The remainder of reported hate crimes consists of crimes motivated by sexual orientation (approximately 11%). See also Christopher L. Eisgruber, Madison's Wager: Religious Liberty in the Constitutional Order, 89 NW. U. L. REV. 347, 373 (1995) (discussing the dangers of religious factions to republican politics); William R. Tamayo, When the "Coloreds" Are Neither Black nor Citizens: The United States Civil Rights Movement and Global Migration, 2 ASIAN L.J. 1, 12-25 (1995) (discussing discrimination between immigrants and the "native" class and within immigrant groups); cf. Bob Jones Univ. v. United States, 461 U.S. 574 (1983) (holding that a compelling interest in eradicating racial discrimination trumps a religious university's free exercise claims); JOHN WILSON, RELIGION IN AMERICAN SOCIETY 319-21 (1978) (arguing that religious differences among Protestants, Catholics, and Jews are declining). Of course, that does not mean that religious discrimination is no longer a problem. See U.S. COMM'N ON CIVIL RIGHTS, RELIGIOUS DISCRIMINATION (1979) (discussing the lack of attention given to religious discrimination issues). However, religious discrimination now appears to have a heavier impact on racial minority groups. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (invalidating city ordinance which prohibited religious sacrifice as unduly burdensome and not narrowly tailored to accomplish asserted government interest) In this respect, the lines of racial and religious discrimination tend to blur, and their effects overlap.
21. The salience of race can be experienced in everyday life; however, statistical support also exists. For instance, pursuant to the Federal Bureau of Investigation's hate crime statistics for the years 1992 to 1994, hate crimes motivated by race (including "antiwhite" bias) and ethnicity/national origin constituted 70-72% of all reported hate crimes, whereas religion-motivated hate crimes made up approximately 17-18% of such reported crimes. See CRIMINAL JUSTICE INFO. SERVS. DIV., U.S. DEP'T OF JUSTICE, 1994 HATE CRIMES STATISTICS 7 (1994); CRIMINAL JUSTICE INFO. SERVS. DIV., U.S. DEP'T OF JUSTICE, 1993 HATE CRIMES STATISTICS (REVISED) 9 (1993); CRIMINAL JUSTICE INFO. SERVS. DIV., U.S. DEP'T OF JUSTICE, 1992 HATE CRIMES STATISTICS 9 (1992). However, of religion-motivated bias crimes, the vast majority (over 85%) of all such incidents were anti-Jewish. See id. If such anti-Jewish bias crimes are classified as ethnic bias crimes, see infra Part I.B.2, the proportion of race/ethnicity/national-origin-motivated crimes climbs to over 85%, and religion-motivated crime drops to about 2%. The remainder of reported hate crimes consists of crimes motivated by sexual orientation (approximately 11%). See also Christopher L. Eisgruber, Madison's Wager: Religious Liberty in the Constitutional Order, 89 NW. U. L. REV. 347, 373 (1995) (discussing the dangers of religious factions to republican politics); William R. Tamayo, When the "Coloreds" Are Neither Black nor Citizens: The United States Civil Rights Movement and Global Migration, 2 ASIAN L.J. 1, 12-25 (1995) (discussing discrimination between immigrants and the "native" class and within immigrant groups); cf. Bob Jones Univ. v. United States, 461 U.S. 574 (1983) (holding that a compelling interest in eradicating racial discrimination trumps a religious university's free exercise claims); JOHN WILSON, RELIGION IN AMERICAN SOCIETY 319-21 (1978) (arguing that religious differences among Protestants, Catholics, and Jews are declining). Of course, that does not mean that religious discrimination is no longer a problem. See U.S. COMM'N ON CIVIL RIGHTS, RELIGIOUS DISCRIMINATION (1979) (discussing the lack of attention given to religious discrimination issues). However, religious discrimination now appears to have a heavier impact on racial minority groups. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (invalidating city ordinance which prohibited religious sacrifice as unduly burdensome and not narrowly tailored to accomplish asserted government interest) In this respect, the lines of racial and religious discrimination tend to blur, and their effects overlap.
22. In fact, the Supreme Court's race jurisprudence, much of it aimed at preventing discrimination against racial minorities, has nevertheless been criticized as actually being harmful to minorities. See, e.g., Gotanda, supra note 3 (arguing that a "color-blind" Constitution, as espoused by the Supreme Court, perpetuates oppression of racial minorities because it fails to recognize or incorporate their experiences); Alex M. Johnson, Jr., Bid Whist, Tank, and United States v. Fordice: Why Integrationism Fails African-Americans Again, 81 CAL. L. REV. 1401, 1414-22 (1993) (arguing that integrationism as a means of combating racial prejudice does not serve the best interests of African Americans).
23. See infra Part I.D.1.
24. See Timothy L. Hall, Religion, Equality and Difference, 65 TEMP. L. REV. 1, 50-52 (1992). Compare Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987) (permitting religious discrimination by the Mormon Church as a means of facilitating free exercise), and Zorach v. Clauson, 343 U.S. 306 (1952) (holding that a school district's policy of permitting children to leave school early in order to attend classes in religious instruction elsewhere is constitutional), with Adarand, 515 U.S. 200 (subjecting federal race-based affirmative action program to strict scrutiny), and City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989) (finding municipal race-based affirmative action impermissible under equal protection clause). In particular, Justice Scalia represents the starkest example of this dichotomy. Compare Kiryas Joel, 512 U.S. at 743 (Scalia, J., dissenting) (arguing that a segregated school district drawn for the benefit of a religious minority group should be permissible as a legislative accommodation), with Croson, 488 U.S. at 520 (Scalia, J., concurring) (rejecting affirmative action as a means of "compensating for social disadvantages, whether . . . acquired by reason of prior discrimination or otherwise"). This is particularly puzzling when one considers that "the justifications of race-based affirmative action are [much] stronger" than any such policies for religious groups. Ira C. Lupu, Uncovering the Village of Kiryas Joel, 96 COLUM. L. REV. 104, 114 (1996).
25. See Timothy L. Hall, Religion, Equality and Difference, 65 TEMP. L. REV. 1, 50-52 (1992). Compare Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987) (permitting religious discrimination by the Mormon Church as a means of facilitating free exercise), and Zorach v. Clauson, 343 U.S. 306 (1952) (holding that a school district's policy of permitting children to leave school early in order to attend classes in religious instruction elsewhere is constitutional), with Adarand, 515 U.S. 200 (subjecting federal race-based affirmative action program to strict scrutiny), and City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989) (finding municipal race-based affirmative action impermissible under equal protection clause). In particular, Justice Scalia represents the starkest example of this dichotomy. Compare Kiryas Joel, 512 U.S. at 743 (Scalia, J., dissenting) (arguing that a segregated school district drawn for the benefit of a religious minority group should be permissible as a legislative accommodation), with Croson, 488 U.S. at 520 (Scalia, J., concurring) (rejecting affirmative action as a means of "compensating for social disadvantages, whether . . . acquired by reason of prior discrimination or otherwise"). This is particularly puzzling when one considers that "the justifications of race-based affirmative action are [much] stronger" than any such policies for religious groups. Ira C. Lupu, Uncovering the Village of Kiryas Joel, 96 COLUM. L. REV. 104, 114 (1996).
26. In this Article I will not address the free-expression-protective components of the Religion Clauses or those aspects of the Equal Protection Clause dealing with fundamental rights or economic relations. For a discussion of the equality principle in the free speech context, see Kenneth L. Karst, Equality as a Central Principle in the First Amendment, 43 U. CHI. L. REV. 20 (1975).
27. 426 U.S. 229 (1976).
28. See, e.g., Zorach, 343 U.S. at 318-19 (Black, J., dissenting); Arlin M. Adams & Charles J. Emmerich, A Heritage of Religious Liberty, 137 U. PA. L. REV. 1559, 1562-82 (1989); Destro, supra note 7, at 50-51.
29. See generally SYDNEY E. AHLSTROM, A RELIGIOUS HISTORY OF THE AMERICAN PEOPLE 121-384 (1972). The Church of England was established as the official church in the Virginia settlement in 1611 and in Maryland and the Carolinas in 1702 and 1704, respectively. See id. at 185-94, 197; DAVID CHIDESTER, PATTERNS OF POWER 18-19; see also Everson v. Board of Educ., 330 U.S. 1, 9-11 (1946); A DOCUMENTARY HISTORY OF RELIGION IN AMERICA 97 (Edwin S. Gaustad ed., 1982) [hereinafter A DOCUMENTARY HISTORY]. Massachusetts and Connecticut established Puritanism. See THOMAS J. CURRY, THE FIRST FREEDOMS 106 (1986); JOHN F. WILSON & DONALD L. DRAKEMAN, CHURCH AND STATE IN AMERICAN HISTORY at xv (2d ed. 1987). New York followed a "multiple establishment" system which gave it the power to establish a church, and thus to force even dissenters to financially support one chosen minister, in individual townships. See CURRY, supra, at 71-72. Rhode Island was the exception, being "the first commonwealth in modern history to make religious liberty (not simply a degree of toleration) a cardinal principle of its corporate existence and to maintain the separation of church and state on these grounds." AHLSTROM, supra, at 182.
30. See generally SYDNEY E. AHLSTROM, A RELIGIOUS HISTORY OF THE AMERICAN PEOPLE 121-384 (1972). The Church of England was established as the official church in the Virginia settlement in 1611 and in Maryland and the Carolinas in 1702 and 1704, respectively. See id. at 185-94, 197; DAVID CHIDESTER, PATTERNS OF POWER 18-19; see also Everson v. Board of Educ., 330 U.S. 1, 9-11 (1946); A DOCUMENTARY HISTORY OF RELIGION IN AMERICA 97 (Edwin S. Gaustad ed., 1982) [hereinafter A DOCUMENTARY HISTORY]. Massachusetts and Connecticut established Puritanism. See THOMAS J. CURRY, THE FIRST FREEDOMS 106 (1986); JOHN F. WILSON & DONALD L. DRAKEMAN, CHURCH AND STATE IN AMERICAN HISTORY at xv (2d ed. 1987). New York followed a "multiple establishment" system which gave it the power to establish a church, and thus to force even dissenters to financially support one chosen minister, in individual townships. See CURRY, supra, at 71-72. Rhode Island was the exception, being "the first commonwealth in modern history to make religious liberty (not simply a degree of toleration) a cardinal principle of its corporate existence and to maintain the separation of church and state on these grounds." AHLSTROM, supra, at 182.
31. See generally SYDNEY E. AHLSTROM, A RELIGIOUS HISTORY OF THE AMERICAN PEOPLE 121-384 (1972). The Church of England was established as the official church in the Virginia settlement in 1611 and in Maryland and the Carolinas in 1702 and 1704, respectively. See id. at 185-94, 197; DAVID CHIDESTER, PATTERNS OF POWER 18-19; see also Everson v. Board of Educ., 330 U.S. 1, 9-11 (1946); A DOCUMENTARY HISTORY OF RELIGION IN AMERICA 97 (Edwin S. Gaustad ed., 1982) [hereinafter A DOCUMENTARY HISTORY]. Massachusetts and Connecticut established Puritanism. See THOMAS J. CURRY, THE FIRST FREEDOMS 106 (1986); JOHN F. WILSON & DONALD L. DRAKEMAN, CHURCH AND STATE IN AMERICAN HISTORY at xv (2d ed. 1987). New York followed a "multiple establishment" system which gave it the power to establish a church, and thus to force even dissenters to financially support one chosen minister, in individual townships. See CURRY, supra, at 71-72. Rhode Island was the exception, being "the first commonwealth in modern history to make religious liberty (not simply a degree of toleration) a cardinal principle of its corporate existence and to maintain the separation of church and state on these grounds." AHLSTROM, supra, at 182.
32. See generally SYDNEY E. AHLSTROM, A RELIGIOUS HISTORY OF THE AMERICAN PEOPLE 121-384 (1972). The Church of England was established as the official church in the Virginia settlement in 1611 and in Maryland and the Carolinas in 1702 and 1704, respectively. See id. at 185-94, 197; DAVID CHIDESTER, PATTERNS OF POWER 18-19; see also Everson v. Board of Educ., 330 U.S. 1, 9-11 (1946); A DOCUMENTARY HISTORY OF RELIGION IN AMERICA 97 (Edwin S. Gaustad ed., 1982) [hereinafter A DOCUMENTARY HISTORY]. Massachusetts and Connecticut established Puritanism. See THOMAS J. CURRY, THE FIRST FREEDOMS 106 (1986); JOHN F. WILSON & DONALD L. DRAKEMAN, CHURCH AND STATE IN AMERICAN HISTORY at xv (2d ed. 1987). New York followed a "multiple establishment" system which gave it the power to establish a church, and thus to force even dissenters to financially support one chosen minister, in individual townships. See CURRY, supra, at 71-72. Rhode Island was the exception, being "the first commonwealth in modern history to make religious liberty (not simply a degree of toleration) a cardinal principle of its corporate existence and to maintain the separation of church and state on these grounds." AHLSTROM, supra, at 182.
33. See generally SYDNEY E. AHLSTROM, A RELIGIOUS HISTORY OF THE AMERICAN PEOPLE 121-384 (1972). The Church of England was established as the official church in the Virginia settlement in 1611 and in Maryland and the Carolinas in 1702 and 1704, respectively. See id. at 185-94, 197; DAVID CHIDESTER, PATTERNS OF POWER 18-19; see also Everson v. Board of Educ., 330 U.S. 1, 9-11 (1946); A DOCUMENTARY HISTORY OF RELIGION IN AMERICA 97 (Edwin S. Gaustad ed., 1982) [hereinafter A DOCUMENTARY HISTORY]. Massachusetts and Connecticut established Puritanism. See THOMAS J. CURRY, THE FIRST FREEDOMS 106 (1986); JOHN F. WILSON & DONALD L. DRAKEMAN, CHURCH AND STATE IN AMERICAN HISTORY at xv (2d ed. 1987). New York followed a "multiple establishment" system which gave it the power to establish a church, and thus to force even dissenters to financially support one chosen minister, in individual townships. See CURRY, supra, at 71-72. Rhode Island was the exception, being "the first commonwealth in modern history to make religious liberty (not simply a degree of toleration) a cardinal principle of its corporate existence and to maintain the separation of church and state on these grounds." AHLSTROM, supra, at 182.
34. See generally SYDNEY E. AHLSTROM, A RELIGIOUS HISTORY OF THE AMERICAN PEOPLE 121-384 (1972). The Church of England was established as the official church in the Virginia settlement in 1611 and in Maryland and the Carolinas in 1702 and 1704, respectively. See id. at 185-94, 197; DAVID CHIDESTER, PATTERNS OF POWER 18-19; see also Everson v. Board of Educ., 330 U.S. 1, 9-11 (1946); A DOCUMENTARY HISTORY OF RELIGION IN AMERICA 97 (Edwin S. Gaustad ed., 1982) [hereinafter A DOCUMENTARY HISTORY]. Massachusetts and Connecticut established Puritanism. See THOMAS J. CURRY, THE FIRST FREEDOMS 106 (1986); JOHN F. WILSON & DONALD L. DRAKEMAN, CHURCH AND STATE IN AMERICAN HISTORY at xv (2d ed. 1987). New York followed a "multiple establishment" system which gave it the power to establish a church, and thus to force even dissenters to financially support one chosen minister, in individual townships. See CURRY, supra, at 71-72. Rhode Island was the exception, being "the first commonwealth in modern history to make religious liberty (not simply a degree of toleration) a cardinal principle of its corporate existence and to maintain the separation of church and state on these grounds." AHLSTROM, supra, at 182.
35. See, e.g., Adams & Emmerich, supra note 18, at 1562-82.
36. See Everson, 330 U.S. at 9-11; A DOCUMENTARY HISTORY, supra note 19, at 97; AHLSTROM, supra note 19, at 185-94, 197; CHIDESTER, supra note 19, at 18-19; CURRY, supra note 19, at 105.
37. See CHIDESTER, supra note 19, at 21; see also CURRY, supra note 19, at 6-28; Hall, supra note 15, at 29-30. The Massachusetts Puritans demanded religious conformity because religious pluralism was equated with anarchy. See CURRY, supra note 19, at 6. The Massachusetts Bay Company also restricted the voting franchise to members of the Puritan Church in 1631. See AHLSTROM, supra note 19, at 147; WILSON & DRAKEMAN, supra note 19, at xxi.
38. See A DOCUMENTARY HISTORY, supra note 19, at 96-97; AHLSTROM, supra note 19, at 331-35; see also CURRY, supra note 19, at 31-53, 56, 72-73.
39. In 1691, Massachusetts provided liberty of conscience to all Christians, except Roman Catholics. See WILSON & DRAKEMAN, supra note 19, at xxi. New York provided for complete religious freedom in 1777. See id. Virginia passed Thomas Jefferson's Act for Establishing Religious Freedom in 1786. See CURRY, supra note 19, at 135-46; see also THOMAS JEFFERSON, A BILL FOR ESTABLISHING RELIGIOUS FREEDOM (1777), reprinted in WILLIAM LEE MILLER, THE FIRST LIBERTY app. I (1986) (Virginia Act for Establishing Religious Freedom (1786), introduced by Thomas Jefferson)
40. In 1691, Massachusetts provided liberty of conscience to all Christians, except Roman Catholics. See WILSON & DRAKEMAN, supra note 19, at xxi. New York provided for complete religious freedom in 1777. See id. Virginia passed Thomas Jefferson's Act for Establishing Religious Freedom in 1786. See CURRY, supra note 19, at 135-46; see also THOMAS JEFFERSON, A BILL FOR ESTABLISHING RELIGIOUS FREEDOM (1777), reprinted in WILLIAM LEE MILLER, THE FIRST LIBERTY app. I (1986) (Virginia Act for Establishing Religious Freedom (1786), introduced by Thomas Jefferson)
41. See CURRY, supra note 19, at 80, 91, 131-32. (Even in the early eighteenth century, Catholics could be challenged to subscribe to a test or an oath of abjuration to the pope, resulting in their exclusion from public life. Likewise, Jews possessed few civil rights, and even those were subject to challenge. Thus, as late as 1784, Virginia permitted only Christian ministers with a settled congregation to perform marriage ceremonies, and fined people for working on Sundays. See id. at 148. Massachusetts protected rights of worship only for Christian denominations, and authorized the legislature to require attendance at religious instruction. See Adams & Emmerich, supra note 18, at 1571. South Carolina restricted elective office to Protestants and dictated certain doctrines to churches that wanted to be incorporated by the state. See CURRY, supra note 19, at 150; Adams & Emmerich, supra note 18, at 1571. However, South Carolina changed those constitutional provisions in 1790, see id., and in fact in 1791 incorporated a Jewish congregation in Charleston, see CURRY, supra note 19, at 151. Maryland, though, continued to require religious oaths and maintained a general anti-Catholic and anti-Jewish atmosphere. See id. at 157-58. While most historical accounts of this time period generally do not describe in any detail the treatment of non-Christians, they presumably were equally subject to such discriminatory treatment.
42. See Wallace v. Jaffree, 472 U.S. 38, 49 (1985); Permoli v. Municipality No. 1 of New Orleans, 44 U.S. (3 How.) 589, 609 (1845); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1161 n.25 (1988).
43. But that did not prevent the federal government from discriminating against some religious groups, such as Mormons. See, e.g., Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 49-50 (1890) (repealing charter of Mormon Church because its precepts of polygamy were repugnant to enlightened people); Reynolds v. United States, 98 U.S. 145, 164-66 (1878) (holding Mormon practice of polygamy not protected by First Amendment).
44. As a result, many states continued the practice of supporting a particular church or a system of multiple establishments, as well as the practice of imposing various other religious tests and restrictions. See generally CURRY, supra note 19, at 193-222.
45. 310 U.S. 296 (1940) (applying the guarantee of the Free Exercise Clause to states through the Due Process Clause of the Fourteenth Amendment).
46. 330 U.S. 1 (1947) (applying the Establishment Clause to states through the Due Process Clause of the Fourteenth Amendment).
47. Of course, religious minorities, including Jews, Catholics, Mormons, and Quakers continued to be victims of discrimination after the American revolution. See, e.g., R. LAURENCE MOORE, RELIGIOUS OUTSIDERS AND THE MAKING OF AMERICANS 25-105 (1986); Alan E. Brownstein, Harmonizing the Heavenly and Earthly Spheres: The Fragmentation and Synthesis of Religion, Equality, and Speech in the Constitution, 51 OHIO ST. L.J. 89 (1990).
48. Of course, religious minorities, including Jews, Catholics, Mormons, and Quakers continued to be victims of discrimination after the American revolution. See, e.g., R. LAURENCE MOORE, RELIGIOUS OUTSIDERS AND THE MAKING OF AMERICANS 25-105 (1986); Alan E. Brownstein, Harmonizing the Heavenly and Earthly Spheres: The Fragmentation and Synthesis of Religion, Equality, and Speech in the Constitution, 51 OHIO ST. L.J. 89 (1990).
49. See, e.g., WINTHROP JORDAN, WHITE OVER BLACK (1968); RICHARD KLUGER, SIMPLE JUSTICE (1976); RONALD TAKAKI, STRANGERS FROM DIFFERENT SHORES (1989).
50. See, e.g., WINTHROP JORDAN, WHITE OVER BLACK (1968); RICHARD KLUGER, SIMPLE JUSTICE (1976); RONALD TAKAKI, STRANGERS FROM DIFFERENT SHORES (1989).
51. See, e.g., WINTHROP JORDAN, WHITE OVER BLACK (1968); RICHARD KLUGER, SIMPLE JUSTICE (1976); RONALD TAKAKI, STRANGERS FROM DIFFERENT SHORES (1989).
52. See, e.g., Kenneth L. Karst, Paths to Belonging: The Constitution and Cultural Identity, 64 N.C. L. REV. 303, 321-23 (1986). For instance, until World War II, the right of Asians to become naturalized U.S. citizens was severely curtailed or abolished by Congress. See, e.g., Gabriel J. Chin, The Civil Rights Revolution Comes to Immigration Law: A New Look at the Immigration and Nationality Act of 1965, 75 N.C. L. REV. 273, 280-82 (1996). Asians and Mexican Americans were subjected to segregation, see Westminster Sch. Dist. v. Mendez, 161 F.2d 774, 780 (9th Cir. 1947), and Asians were prohibited from owning land, see Karst, supra, at 322. In California, Asians were even prohibited from testifying in court against "whites," see People v. Hall, 4 Cal. 399 (1854); see also Charles J. McClain, The Chinese Struggle for Civil Rights in Nineteenth Century America: The First Phase, 1850-1870, 72 CAL. L. REV. 529, 548-53 (1984), and were subjected to discriminatory taxes, see id. at 539-48, 553-59. Japanese Americans were forced into internment camps during World War II. See Korematsu v. United States, 323 U.S. 214, 216 (1944); see also TRIBE, supra note 26, at 1466-74.
53. See, e.g., Kenneth L. Karst, Paths to Belonging: The Constitution and Cultural Identity, 64 N.C. L. REV. 303, 321-23 (1986). For instance, until World War II, the right of Asians to become naturalized U.S. citizens was severely curtailed or abolished by Congress. See, e.g., Gabriel J. Chin, The Civil Rights Revolution Comes to Immigration Law: A New Look at the Immigration and Nationality Act of 1965, 75 N.C. L. REV. 273, 280-82 (1996). Asians and Mexican Americans were subjected to segregation, see Westminster Sch. Dist. v. Mendez, 161 F.2d 774, 780 (9th Cir. 1947), and Asians were prohibited from owning land, see Karst, supra, at 322. In California, Asians were even prohibited from testifying in court against "whites," see People v. Hall, 4 Cal. 399 (1854); see also Charles J. McClain, The Chinese Struggle for Civil Rights in Nineteenth Century America: The First Phase, 1850-1870, 72 CAL. L. REV. 529, 548-53 (1984), and were subjected to discriminatory taxes, see id. at 539-48, 553-59. Japanese Americans were forced into internment camps during World War II. See Korematsu v. United States, 323 U.S. 214, 216 (1944); see also TRIBE, supra note 26, at 1466-74.
54. See, e.g., Kenneth L. Karst, Paths to Belonging: The Constitution and Cultural Identity, 64 N.C. L. REV. 303, 321-23 (1986). For instance, until World War II, the right of Asians to become naturalized U.S. citizens was severely curtailed or abolished by Congress. See, e.g., Gabriel J. Chin, The Civil Rights Revolution Comes to Immigration Law: A New Look at the Immigration and Nationality Act of 1965, 75 N.C. L. REV. 273, 280-82 (1996). Asians and Mexican Americans were subjected to segregation, see Westminster Sch. Dist. v. Mendez, 161 F.2d 774, 780 (9th Cir. 1947), and Asians were prohibited from owning land, see Karst, supra, at 322. In California, Asians were even prohibited from testifying in court against "whites," see People v. Hall, 4 Cal. 399 (1854); see also Charles J. McClain, The Chinese Struggle for Civil Rights in Nineteenth Century America: The First Phase, 1850-1870, 72 CAL. L. REV. 529, 548-53 (1984), and were subjected to discriminatory taxes, see id. at 539-48, 553-59. Japanese Americans were forced into internment camps during World War II. See Korematsu v. United States, 323 U.S. 214, 216 (1944); see also TRIBE, supra note 26, at 1466-74.
55. For a brief history of federal policy toward Native American tribes, see FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 47-206 (Rennard Strickland et al. eds., 1982). See also VINE DELORIA, JR. & CLIFFORD M. LYTLE, AMERICAN INDIANS, AMERICAN JUSTICE 1-21 (1983); TRIBE, supra note 26, at 1466-74.
56. For a brief history of federal policy toward Native American tribes, see FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 47-206 (Rennard Strickland et al. eds., 1982). See also VINE DELORIA, JR. & CLIFFORD M. LYTLE, AMERICAN INDIANS, AMERICAN JUSTICE 1-21 (1983); TRIBE, supra note 26, at 1466-74.
57. See, e.g., CYNTHIA H. ENLOE, ETHNIC CONFLICT AND POLITICAL DEVELOPMENT 15-20 (1973); George A. De Vos, Ethnic Pluralism: Conflict and Accommodation, in ETHNIC IDENTITY 15, 18-23 (Lola Romanucci-Ross & George A. De Vos eds., 3d ed. 1995); GORDON, supra note 6, at 27-28 (discussing importance of race, religion, and national origin in forming ethnic groups); AUDREY SMEDLEY, RACE IN NORTH AMERICA 29 (1993); see also Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 740 (1994) (Scalia, J., dissenting) (discussing cultural aspects of religious sect membership); Greene, supra note 2, at 73 n.293.
58. See, e.g., CYNTHIA H. ENLOE, ETHNIC CONFLICT AND POLITICAL DEVELOPMENT 15-20 (1973); George A. De Vos, Ethnic Pluralism: Conflict and Accommodation, in ETHNIC IDENTITY 15, 18-23 (Lola Romanucci-Ross & George A. De Vos eds., 3d ed. 1995); GORDON, supra note 6, at 27-28 (discussing importance of race, religion, and national origin in forming ethnic groups); AUDREY SMEDLEY, RACE IN NORTH AMERICA 29 (1993); see also Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 740 (1994) (Scalia, J., dissenting) (discussing cultural aspects of religious sect membership); Greene, supra note 2, at 73 n.293.
59. See, e.g., CYNTHIA H. ENLOE, ETHNIC CONFLICT AND POLITICAL DEVELOPMENT 15-20 (1973); George A. De Vos, Ethnic Pluralism: Conflict and Accommodation, in ETHNIC IDENTITY 15, 18-23 (Lola Romanucci-Ross & George A. De Vos eds., 3d ed. 1995); GORDON, supra note 6, at 27-28 (discussing importance of race, religion, and national origin in forming ethnic groups); AUDREY SMEDLEY, RACE IN NORTH AMERICA 29 (1993); see also Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 740 (1994) (Scalia, J., dissenting) (discussing cultural aspects of religious sect membership); Greene, supra note 2, at 73 n.293.
60. See GORDON, supra note 6, at 27-28. Even though ethnic labels may be associated with Bosnian Muslims, Croat Catholics, and Serb Orthodox Christians, groups that are primarily distinguished by religion, ethnicity is not commonly used to describe the religious differences that existed between Puritans, Quakers, and Catholics during colonial times.
61. See, e.g., WILL KYMLICKA, LIBERALISM, COMMUNITY & CULTURE (1989); Karst, supra note 33.
62. See KYMLICKA, supra note 37, at 162-81; Karst, supra note 33, at 306-09; see also J. MILTON YINGER, SOCIOLOGY LOOKS AT RELIGION 89-113 (1963) (discussing the social forces involved in religious and ethnic group identification or withdrawal). Will Kymlicka distinguishes his conception of the value of cultural group membership from that of communitarians in that communitarians "deny that we can 'stand apart' from (some of) our ends," believing instead that individuals are able to examine one's own moral values and ways of life. WILL KYMLICKA, MULTICULTURAL CITIZENSHIP 91-93 (1995); see also KYMLICKA, supra note 37, at 47-70.
63. See KYMLICKA, supra note 37, at 162-81; Karst, supra note 33, at 306-09; see also J. MILTON YINGER, SOCIOLOGY LOOKS AT RELIGION 89-113 (1963) (discussing the social forces involved in religious and ethnic group identification or withdrawal). Will Kymlicka distinguishes his conception of the value of cultural group membership from that of communitarians in that communitarians "deny that we can 'stand apart' from (some of) our ends," believing instead that individuals are able to examine one's own moral values and ways of life. WILL KYMLICKA, MULTICULTURAL CITIZENSHIP 91-93 (1995); see also KYMLICKA, supra note 37, at 47-70.
64. See Karst, supra note 33, at 306-09; see also Avishai Margalit & Joseph Raz, National Self-Determination, 87 J. PHIL. 439, 449 (1990).
65. See Karst, supra note 33, at 308.
66. See KYMLICKA, supra note 37, at 175 ("Cultural heritage, the sense of belonging to a cultural structure and history, is often cited as the source of emotional security and personal strength."); see also Randall L. Kennedy, McClesky v. Kemp: Race, Capital Punishment, and the Supreme Court, 101 HARV. L. REV. 1388, 1395 (1988) (discussing the "propensity for persons to empathize more fully with those with whom they can identify"). Various members of the Supreme Court have recognized the value of belonging, particularly in the religion context. Thus, the Establishment Clause is infringed when the government makes adherence to religion relevant to a person's standing in the political community. Direct government action endorsing religion or a particular religious practice is invalid under this approach because it "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Wallace v. Jaffree, 472 U.S. 38, 69 (1985) (O'Connor, J., concurring) (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984)); cf. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 461 (1985) (Marshall, J., dissenting) (arguing that excluding the mentally retarded "deprives [them] of much of what makes for human freedom and fulfillment - the ability to form bonds and take part in the life of a community"); Lynch, 465 U.S. at 709 (Brennan, J., dissenting) ("to be . . . excluded on religious grounds by one's elected government is an insult and an injury that [cannot] be countenanced by the Establishment Clause"). The need for such attachments has variously been attributed to sociobiological causes (as a search for kinship), and to alienation from a large, heterogeneous, rapidly changing society, and has been viewed as a utilitarian means in the struggle for power, status, and income. See generally JEFF SPINNER, THE BOUNDARIES OF CITIZENSHIP 59 (1994) ("Ethnic identity may be a way for some to make a large, anonymous world a little more intimate."); J. MILTON YINGER, ETHNICITY 43-48 (1994).
67. See KYMLICKA, supra note 37, at 175 ("Cultural heritage, the sense of belonging to a cultural structure and history, is often cited as the source of emotional security and personal strength."); see also Randall L. Kennedy, McClesky v. Kemp: Race, Capital Punishment, and the Supreme Court, 101 HARV. L. REV. 1388, 1395 (1988) (discussing the "propensity for persons to empathize more fully with those with whom they can identify"). Various members of the Supreme Court have recognized the value of belonging, particularly in the religion context. Thus, the Establishment Clause is infringed when the government makes adherence to religion relevant to a person's standing in the political community. Direct government action endorsing religion or a particular religious practice is invalid under this approach because it "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Wallace v. Jaffree, 472 U.S. 38, 69 (1985) (O'Connor, J., concurring) (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984)); cf. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 461 (1985) (Marshall, J., dissenting) (arguing that excluding the mentally retarded "deprives [them] of much of what makes for human freedom and fulfillment - the ability to form bonds and take part in the life of a community"); Lynch, 465 U.S. at 709 (Brennan, J., dissenting) ("to be . . . excluded on religious grounds by one's elected government is an insult and an injury that [cannot] be countenanced by the Establishment Clause"). The need for such attachments has variously been attributed to sociobiological causes (as a search for kinship), and to alienation from a large, heterogeneous, rapidly changing society, and has been viewed as a utilitarian means in the struggle for power, status, and income. See generally JEFF SPINNER, THE BOUNDARIES OF CITIZENSHIP 59 (1994) ("Ethnic identity may be a way for some to make a large, anonymous world a little more intimate."); J. MILTON YINGER, ETHNICITY 43-48 (1994).
68. See KYMLICKA, supra note 37, at 175 ("Cultural heritage, the sense of belonging to a cultural structure and history, is often cited as the source of emotional security and personal strength."); see also Randall L. Kennedy, McClesky v. Kemp: Race, Capital Punishment, and the Supreme Court, 101 HARV. L. REV. 1388, 1395 (1988) (discussing the "propensity for persons to empathize more fully with those with whom they can identify"). Various members of the Supreme Court have recognized the value of belonging, particularly in the religion context. Thus, the Establishment Clause is infringed when the government makes adherence to religion relevant to a person's standing in the political community. Direct government action endorsing religion or a particular religious practice is invalid under this approach because it "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Wallace v. Jaffree, 472 U.S. 38, 69 (1985) (O'Connor, J., concurring) (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984)); cf. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 461 (1985) (Marshall, J., dissenting) (arguing that excluding the mentally retarded "deprives [them] of much of what makes for human freedom and fulfillment - the ability to form bonds and take part in the life of a community"); Lynch, 465 U.S. at 709 (Brennan, J., dissenting) ("to be . . . excluded on religious grounds by one's elected government is an insult and an injury that [cannot] be countenanced by the Establishment Clause"). The need for such attachments has variously been attributed to sociobiological causes (as a search for kinship), and to alienation from a large, heterogeneous, rapidly changing society, and has been viewed as a utilitarian means in the struggle for power, status, and income. See generally JEFF SPINNER, THE BOUNDARIES OF CITIZENSHIP 59 (1994) ("Ethnic identity may be a way for some to make a large, anonymous world a little more intimate."); J. MILTON YINGER, ETHNICITY 43-48 (1994).
69. See Kenneth L. Karst, Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation, 43 UCLA L. REV. 263, 268 (1995). Karst also discusses the notions of "passing" (for African Americans) and "outing" (with respect to gays and lesbians) as related to the issue of belonging to a cultural group. See id. 43. See KYMLICKA, supra note 37, at 164-66.
70. See id.; KYMLICKA, supra note 38, at 82-93; see also RUTH BENEDICT, PATTERNS OF CULTURE (1934). No man ever looks at the world with pristine eyes. He sees it edited by a definite set of customs and institutions and ways of thinking. Even in his philosophical probings he cannot go behind these stereotypes; his very concepts of the true and the false will still have reference to his particular traditional customs. Id. at 2; see RONALD M. DWORKIN, A MATTER OF PRINCIPLE 228 (1985); CLIFFORD GEERTZ, THE INTERPRETATION OF CULTURES 6-7 (1973); Karst, supra note 33; Margalit & Raz, supra note 39, at 448-49.
71. See id.; KYMLICKA, supra note 38, at 82-93; see also RUTH BENEDICT, PATTERNS OF CULTURE (1934). No man ever looks at the world with pristine eyes. He sees it edited by a definite set of customs and institutions and ways of thinking. Even in his philosophical probings he cannot go behind these stereotypes; his very concepts of the true and the false will still have reference to his particular traditional customs. Id. at 2; see RONALD M. DWORKIN, A MATTER OF PRINCIPLE 228 (1985); CLIFFORD GEERTZ, THE INTERPRETATION OF CULTURES 6-7 (1973); Karst, supra note 33; Margalit & Raz, supra note 39, at 448-49.
72. See id.; KYMLICKA, supra note 38, at 82-93; see also RUTH BENEDICT, PATTERNS OF CULTURE (1934). No man ever looks at the world with pristine eyes. He sees it edited by a definite set of customs and institutions and ways of thinking. Even in his philosophical probings he cannot go behind these stereotypes; his very concepts of the true and the false will still have reference to his particular traditional customs. Id. at 2; see RONALD M. DWORKIN, A MATTER OF PRINCIPLE 228 (1985); CLIFFORD GEERTZ, THE INTERPRETATION
73. BENEDICT, supra note 44, at 3.
74. Cf. JOHN RAWLS, POLITICAL LIBERALISM 222 (1993) ("bonds of society and culture, of history and social place of origin, begin so early to shape our life and are normally so strong that the right of emigration . . . does not suffice to make accepting its authority free [of coercion]").
75. KYMLICKA, supra note 38, at 83 (quoting DWORKIN, supra note 44, at 227-28).
76. See EMILE DURKHEIM, THE SOCIAL FOUNDATION OF RELIGION 432 (1965) ("[B]efore all, rites are means by which the social group reaffirms itself periodically. . . . Men who feel themselves united, partially by bonds of blood, but still more by a community of interest and tradition, assemble and become conscious of their moral unity."); see also BETTY R. SCHARF, THE SOCIOLOGICAL STUDY OF RELIGION 73-92 (1970).
77. See EMILE DURKHEIM, THE SOCIAL FOUNDATION OF RELIGION 432 (1965) ("[B]efore all, rites are means by which the social group reaffirms itself periodically. . . . Men who feel themselves united, partially by bonds of blood, but still more by a community of interest and tradition, assemble and become conscious of their moral unity."); see also BETTY R. SCHARF, THE SOCIOLOGICAL STUDY OF RELIGION 73-92 (1970).
78. See, e.g., CHIDESTER, supra note 19, at 83-86 (describing the relationship of religion to community formation and maintenance as culture religion); THOMAS F. O'DEA & JANET O'DEA AVIAD, THE SOCIOLOGY OF RELIGION 14-15 (2d ed. 1983); SCHARF, supra note 48, at 40-47 (analyzing the overlap of religion and various societal memberships); Stephen Pepper, Conflicting Paradigms of Religious Freedom: Liberty Versus Equality, 1993 BYU L. REV. 7, 39, 41-42; see also Note, Reinterpreting the Religion Clauses: Constitutional Construction and Conceptions of the Self, 97 HARV. L. REV. 1468, 1474, 1477-78 (1984) ("Defined functionally, a religion is a system of belief that is essential to the self-definition of the believer.").
79. See, e.g., CHIDESTER, supra note 19, at 83-86 (describing the relationship of religion to community formation and maintenance as culture religion); THOMAS F. O'DEA & JANET O'DEA AVIAD, THE SOCIOLOGY OF RELIGION 14-15 (2d ed. 1983); SCHARF, supra note 48, at 40-47 (analyzing the overlap of religion and various societal memberships); Stephen Pepper, Conflicting Paradigms of Religious Freedom: Liberty Versus Equality, 1993 BYU L. REV. 7, 39, 41-42; see also Note, Reinterpreting the Religion Clauses: Constitutional Construction and Conceptions of the Self, 97 HARV. L. REV. 1468, 1474, 1477-78 (1984) ("Defined functionally, a religion is a system of belief that is essential to the self-definition of the believer.").
80. See, e.g., CHIDESTER, supra note 19, at 83-86 (describing the relationship of religion to community formation and maintenance as culture religion); THOMAS F. O'DEA & JANET O'DEA AVIAD, THE SOCIOLOGY OF RELIGION 14-15 (2d ed. 1983); SCHARF, supra note 48, at 40-47 (analyzing the overlap of religion and various societal memberships); Stephen Pepper, Conflicting Paradigms of Religious Freedom: Liberty Versus Equality, 1993 BYU L. REV. 7, 39, 41-42; see also Note, Reinterpreting the Religion Clauses: Constitutional Construction and Conceptions of the Self, 97 HARV. L. REV. 1468, 1474, 1477-78 (1984) ("Defined functionally, a religion is a system of belief that is essential to the self-definition of the believer.").
81. See GEERTZ, supra note 44, at 87-125 (describing religion as a cultural system of symbols and meaning that provides the individual with a conception of the world and a "gloss upon the mundane world of social relationships and psychological events," which renders them thus "graspable"); cf. CHIDESTER, supra note 19, at 31-33 (describing Puritan theocratic model of government where "church and state were seen as two aspects of a single order"). It is based on the value-generating quality of religion that conservative Christians have sought and justified greater influence of Christianity in the schools and other aspects of public life.
82. See Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687 (1994) (involving self-isolation from the rest of society of a community of orthodox Jews); SCHARF, supra note 48, at 42-44; YINGER, supra note 41, at 288 (discussing racial heterogeneity of Jews in Israel but overarching commonality of religion); Gustav Niebuhr, Short Course in Judaism, Especially for New Year, N.Y. TIMES, Sept. 13, 1996, at B6 (discussing judaism in context of community and identity).
83. See SCHARF, supra note 48, at 43-44.
84. See Wisconsin v. Yoder, 406 U.S. 205, 216 (1972) ("for the Old Order Amish, religion pervades and determines virtually their entire way of life, regulating it with the detail of the Talmudic diet through the strictly enforced rules of the church community"). The unifying function of religious beliefs was especially important during colonial times. At the time of the American revolution, "[a]fter a century and a half of colonial settlement in which the overwhelming majority of citizens were Protestant, a contemporary would in many instances have been hard put to define where [the religion of] Protestantism ended and secular life began." CURRY, supra note 19, at 218. For instance, Calvinist theology and the associated perspectives imbued everyday life to such a degree that on the basis of that shared morality seventeenth-century Massachusetts Bay Colony Puritan magistrates were able to enforce conformity to established Puritan religious doctrines without the help of Puritan ministers. See id. at 7.
85. For instance, in studies conducted during the 1960s and 1970s, three-quarters of American Catholics reported that their closest friends were Catholic. See ANDREW M. GREELEY, RELIGION: A SECULAR THEORY 127 (1982);
86. see also GORDON, supra note 6, at 122-23 (discussing preference for marriage within the religious group). Furthermore, in marriages that cross denominational lines, a frequent phenomenon today, a tendency exists for one of the spouses to convert, usually to the denomination of the more devout partner. See id.
87. Different religious communities have different voting patterns and usually form social reference groups for their members. See Robert P. Swierenga, Ethnoreligious Political Behavior in the Mid-Nineteenth Century: Voting, Values, Cultures, in RELIGION AND AMERICAN POLITICS 146 (Mark A. Noll ed., 1990). It has even been argued that in fact "'theology rather than language, customs, or heritage was the foundation of cultural and political subgroups in America.'" Id. at 150 (quoting RICHARD J. JENSEN, THE WINNING OF THE MIDWEST 89 (1971)).
88. Different religious communities have different voting patterns and usually form social reference groups for their members. See Robert P. Swierenga, Ethnoreligious Political Behavior in the Mid-Nineteenth Century: Voting, Values, Cultures, in RELIGION AND AMERICAN POLITICS 146 (Mark A. Noll ed., 1990). It has even been argued that in fact "'theology rather than language, customs, or heritage was the foundation of cultural and political subgroups in America.'" Id. at 150 (quoting RICHARD J. JENSEN, THE WINNING OF THE MIDWEST 89 (1971)).
89. Physiological characteristics and even diseases may be statistically correlated with certain races and ethnic groups, such as sickle-cell anemia with African Americans or Tay-Sachs disease with Eastern European Jews.
90. Under this rule, also called the "one-drop rule," a person with even one drop of "black" blood, that is, regardless of the proportion of African ancestry, was considered "black." For a discussion of the rule of "hypodescent," see Gotanda, supra note 3, at 23-26.
91. The Supreme Court itself acknowledged that determinations of skin color under the law is not a matter of biology but of sociological and political factors. Thus, testing "whiteness" by the mere color of the skin of each individual is impractical as that differs greatly among persons of the same race, even among Anglo-Saxons, ranging by imperceptible gradations from the fair blond to the swarthy brunette, the latter being darker than many of the lighter hued persons of the brown or yellow races. Hence to adopt the color test alone would result in a confused overlapping of races and a gradual merging of one into the other, without any practical line of separation. Ozawa v. United States, 260 U.S. 178, 197 (1922). See generally IAN F. HANEY LÓPEZ, WHITE BY LAW 79-92 (1996) (discussing Supreme Court holding that Asian Indians, even though Caucasian, were not "white" for purposes of naturalization law, even though its ruling issued only a few months earlier had defined "white" as "caucasian" in a naturalization case involving a Japanese immigrant); Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1 (1994). This statement in itself can be seen as an attempt by the Court to draw "race" lines based on characteristics other than biology.
92. The Supreme Court itself acknowledged that determinations of skin color under the law is not a matter of biology but of sociological and political factors. Thus, testing "whiteness" by the mere color of the skin of each individual is impractical as that differs greatly among persons of the same race, even among Anglo-Saxons, ranging by imperceptible gradations from the fair blond to the swarthy brunette, the latter being darker than many of the lighter hued persons of the brown or yellow races. Hence to adopt the color test alone would result in a confused overlapping of races and a gradual merging of one into the other, without any practical line of separation. Ozawa v. United States, 260 U.S. 178, 197 (1922). See generally IAN F. HANEY LÓPEZ, WHITE BY LAW 79-92 (1996) (discussing Supreme Court holding that Asian Indians, even though Caucasian, were not "white" for purposes of naturalization law, even though its ruling issued only a few months earlier had defined "white" as "caucasian" in a naturalization case involving a Japanese immigrant); Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1 (1994). This statement in itself can be seen as an attempt by the Court to draw "race" lines based on characteristics other than biology.
93. See, e.g., STEVEN J. COULD, THE MISMEASURE OF MAN (1981); Gotanda, supra note 3, at 23-36; Karst, supra note 42, at 306-08; Charles R. Lawrence, III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 330 (1987); López, supra note 58;
94. See, e.g., STEVEN J. COULD, THE MISMEASURE OF MAN (1981); Gotanda, supra note 3, at 23-36; Karst, supra note 42, at 306-08; Charles R. Lawrence, III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 330 (1987); López, supra note 58;
95. See, e.g., STEVEN J. COULD, THE MISMEASURE OF MAN (1981); Gotanda, supra note 3, at 23-36; Karst, supra note 42, at 306-08; Charles R. Lawrence, III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 330 (1987); López, supra note 58;
96. See, e.g., STEVEN J. COULD, THE MISMEASURE OF MAN (1981); Gotanda, supra note 3, at 23-36; Karst, supra note 42, at 306-08; Charles R. Lawrence, III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 330 (1987); López, supra note 58;
97. See, e.g., STEVEN J. COULD, THE MISMEASURE OF MAN (1981); Gotanda, supra note 3, at 23-36; Karst, supra note 42, at 306-08; Charles R. Lawrence, III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 330 (1987); López, supra note 58;
98. cf. Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987) (holding that private college's alleged discrimination against Arabs constituted racial discrimination forbidden by 42 U.S.C. § 1981); Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987) (animus against Jews is the equivalent of racial animus for purposes of the prohibitions of 42 U.S.C. §1982).
99. In contrast, other immutable physical characteristics, such as eye color, height, or shoe size lack the social symbolism of race. Given the social symbolism of race, it is not surprising that the term "race" has been used interchangeably with "ethnicity." See Saint Francis College, 481 U.S. at 611-13 (discussing post-Civil War congressional debates that referred to various ethnic groups as separate races, including Scandinavians, Anglo-Saxons, Germans, Jews, Latinos, Mexicans, Spaniards, Chinese, Mongolians, and Gypsies).
100. Cf. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 472 (1985) (Marshall, J., dissenting). The political powerlessness of a group and the immutability of its defining trait are relevant insofar as they point to a social or cultural isolation that gives the majority little reason to respect or be concerned with that group's interests and needs. Statutes discriminating against the young have not been common nor need be feared because those who do vote and legislate were once themselves young, typically have children of their own, and certainly interact regularly with minors. Their social integration means that minors, unlike discrete and insular minorities, tend to be treated in legislative arenas with full concern and respect, despite their formal and complete exclusion from the electoral process. Id. at 472 n.24 (Marshall, J., dissenting).
101. This perspective explains why it makes more sense to permit people to self-identify with a racial group rather than to assign racial group membership based on skin color. Only self-identification can capture the sense of belonging that is necessary to ethnic identity.
102. See Johnson, supra note 13, at 1414-22 (opining that African American community is a unique ethnic group); Alex M. Johnson, Jr., The New Voice of Color, 100 YALE L.J. 2007 (1991).
103. See Johnson, supra note 13, at 1414-22 (opining that African American community is a unique ethnic group); Alex M. Johnson, Jr., The New Voice of Color, 100 YALE L.J. 2007 (1991).
104. Hall, supra note 15, at 62; see also Brownstein, supra note 31, at 109-10; Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 HARV. L. REV. 1176, 1215 (1996). The inclusion of religious affiliation as a suspect classification is consistent with this view.
105. Hall, supra note 15, at 62; see also Brownstein, supra note 31, at 109-10; Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 HARV. L. REV. 1176, 1215 (1996). The inclusion of religious affiliation as a suspect classification is consistent with this view.
106. Hall, supra note 15, at 62; see also Brownstein, supra note 31, at 109-10; Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 HARV. L. REV. 1176, 1215 (1996). The inclusion of religious affiliation as a suspect classification is consistent with this view.
107. It is for this reason that forcing somebody to violate their religious beliefs inflicts peculiar harms. See Hall, supra note 15, at 32-36.
108. See, e.g., KYMLICKA, supra note 38, at 84-93; Greene, supra note 2 (noting importance of religion in forming nomic community); Timothy L. Hall, Religion and Civic Virtue: A Justification of Free Exercise, 67 TUL. L. REV. 87 (1992).
109. See, e.g., KYMLICKA, supra note 38, at 84-93; Greene, supra note 2 (noting importance of religion in forming nomic community); Timothy L. Hall, Religion and Civic Virtue: A Justification of Free Exercise, 67 TUL. L. REV. 87 (1992).
110. See, e.g., KYMLICKA, supra note 38, at 84-93; Greene, supra note 2 (noting importance of religion in forming nomic community); Timothy L. Hall, Religion and Civic Virtue: A Justification of Free Exercise, 67 TUL. L. REV. 87 (1992).
111. See KYMLICKA, supra note 38, at 123.
112. See O'DEA & AVIAD, supra note 49, at 18 ("Moreover, by sacralizing the identity it provides, [religious identification] may worsen and in fact embitter conflict, and build deeply into the personality structures of people a recalcitrance to come to terms with an opponent."); see also Hall, supra note 15, at 57-61. See generally Lawrence, supra note 59.
113. See, e.g., Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373, 382 (1985); see also TRIBE, supra note 26, at 1163 n.38; Michael W. McConnell, Christ, Culture, and Courts: A Niebuhrian Examination of First Amendment Jurisprudence, 42 DEPAUL L. REV. 191, 194 (1992); cf. Perry Miller, Puritan State and Puritan Society, reprinted in WILSON & DRAKEMAN, supra note 19, at 25-27 (discussing strong community basis of puritanism and exclusion of those of a different religion).
114. See, e.g., Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373, 382 (1985); see also TRIBE, supra note 26, at 1163 n.38; Michael W. McConnell, Christ, Culture, and Courts: A Niebuhrian Examination of First Amendment Jurisprudence, 42 DEPAUL L. REV. 191, 194 (1992); cf. Perry Miller, Puritan State and Puritan Society, reprinted in WILSON & DRAKEMAN, supra note 19, at 25-27 (discussing strong community basis of puritanism and exclusion of those of a different religion).
115. See, e.g., Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373, 382 (1985); see also TRIBE, supra note 26, at 1163 n.38; Michael W. McConnell, Christ, Culture, and Courts: A Niebuhrian Examination of First Amendment Jurisprudence, 42 DEPAUL L. REV. 191, 194 (1992); cf. Perry Miller, Puritan State and Puritan Society, reprinted in WILSON & DRAKEMAN, supra note 19, at 25-27 (discussing strong community basis of puritanism and exclusion of those of a different religion).
116. See, e.g., Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373, 382 (1985); see also TRIBE, supra note 26, at 1163 n.38; Michael W. McConnell, Christ, Culture, and Courts: A Niebuhrian Examination of First Amendment Jurisprudence, 42 DEPAUL L. REV. 191, 194 (1992); cf. Perry Miller, Puritan State and Puritan Society, reprinted in WILSON & DRAKEMAN, supra note 19, at 25-27 (discussing strong community basis of puritanism and exclusion of those of a different religion).
117. See generally CURRY, supra note 19.
118. It has been suggested that the formation of an Asian American group identity has been the result of the shared experience of discrimination. See Karst, supra note 42, at 297 & n. 152. That is a significant observation since many immigrant Asians tend not to view themselves as part of a larger Asian ethnic grouping but instead as part of communities based on their national origin. In fact, until recent times, there arguably was no such thing as an Asian American identity, only separate Japanese American, Korean American, Filipino American, or Chinese American identities. Only recently has such an identity emerged based on political organizing. See, e.g., Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 CAL. L. REV. 1243 (1993); L. Ling-chi Wang, The Politics of Ethnic Identity and Empowerment: The Asian-American Community Since the 1960s, ASIAN AM. POL'Y REV., Spring 1993, at 43.
119. It has been suggested that the formation of an Asian American group identity has been the result of the shared experience of discrimination. See Karst, supra note 42, at 297 & n. 152. That is a significant observation since many immigrant Asians tend not to view themselves as part of a larger Asian ethnic grouping but instead as part of communities based on their national origin. In fact, until recent times, there arguably was no such thing as an Asian American identity, only separate Japanese American, Korean American, Filipino American, or Chinese American identities. Only recently has such an identity emerged based on political organizing. See, e.g., Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 CAL. L. REV. 1243 (1993); L. Ling-chi Wang, The Politics of Ethnic Identity and Empowerment: The Asian-American Community Since the 1960s, ASIAN AM. POL'Y REV., Spring 1993, at 43.
120. See, e.g., ENLOE, supra note 35, at 24-25; TRIBE, supra note 26, at 1518 (discussing subjugation of black Americans through slavery and segregation and the role color played in institutionalizing that system); see also LAWRENCE W. LEVINE, BLACK CULTURE AND BLACK CONSCIOUSNESS (1977); MOORE, supra note 31, at 173-200; cf. Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107, 148-55 (1976). See generally NATHAN GLAZER & DANIEL P. MOYNIHAN, BEYOND THE MELTING POT 52 (1963) (arguing that slavery, prejudice, discrimination, and associated factors have created a communal group out of African Americans); JORDAN, supra note 32 (exploring attitudes of society toward African Americans and association of race with social status as slaves). Ronald Taylor has argued that black ethnicity is not purely the result of exclusion, but has been and is also influenced by migration, urbanization, and intergroup conflict, influences similar to those that promoted the development of ethnic identities and communities among European immigrants. See Ronald L. Taylor, Black Ethnicity and the Persistence of Ethnogenesis, 84 AM. J. SOC. 1401 (1979).
121. See, e.g., ENLOE, supra note 35, at 24-25; TRIBE, supra note 26, at 1518 (discussing subjugation of black Americans through slavery and segregation and the role color played in institutionalizing that system); see also LAWRENCE W. LEVINE, BLACK CULTURE AND BLACK CONSCIOUSNESS (1977); MOORE, supra note 31, at 173-200; cf. Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107, 148-55 (1976). See generally NATHAN GLAZER & DANIEL P. MOYNIHAN, BEYOND THE MELTING POT 52 (1963) (arguing that slavery, prejudice, discrimination, and associated factors have created a communal group out of African Americans); JORDAN, supra note 32 (exploring attitudes of society toward African Americans and association of race with social status as slaves). Ronald Taylor has argued that black ethnicity is not purely the result of exclusion, but has been and is also influenced by migration, urbanization, and intergroup conflict, influences similar to those that promoted the development of ethnic identities and communities among European immigrants. See Ronald L. Taylor, Black Ethnicity and the Persistence of Ethnogenesis, 84 AM. J. SOC. 1401 (1979).
122. See, e.g., ENLOE, supra note 35, at 24-25; TRIBE, supra note 26, at 1518 (discussing subjugation of black Americans through slavery and segregation and the role color played in institutionalizing that system); see also LAWRENCE W. LEVINE, BLACK CULTURE AND BLACK CONSCIOUSNESS (1977); MOORE, supra note 31, at 173-200; cf. Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107, 148-55 (1976). See generally NATHAN GLAZER & DANIEL P. MOYNIHAN, BEYOND THE MELTING POT 52 (1963) (arguing that slavery, prejudice, discrimination, and associated factors have created a communal group out of African Americans); JORDAN, supra note 32 (exploring attitudes of society toward African Americans and association of race with social status as slaves). Ronald Taylor has argued that black ethnicity is not purely the result of exclusion, but has been and is also influenced by migration, urbanization, and intergroup conflict, influences similar to those that promoted the development of ethnic identities and communities among European immigrants. See Ronald L. Taylor, Black Ethnicity and the Persistence of Ethnogenesis, 84 AM. J. SOC. 1401 (1979).
123. See, e.g., ENLOE, supra note 35, at 24-25; TRIBE, supra note 26, at 1518 (discussing subjugation of black Americans through slavery and segregation and the role color played in institutionalizing that system); see also LAWRENCE W. LEVINE, BLACK CULTURE AND BLACK CONSCIOUSNESS (1977); MOORE, supra note 31, at 173-200; cf. Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107, 148-55 (1976). See generally NATHAN GLAZER & DANIEL P. MOYNIHAN, BEYOND THE MELTING POT 52 (1963) (arguing that slavery, prejudice, discrimination, and associated factors have created a communal group out of African Americans); JORDAN, supra note 32 (exploring attitudes of society toward African Americans and association of race with social status as slaves). Ronald Taylor has argued that black ethnicity is not purely the result of exclusion, but has been and is also influenced by migration, urbanization, and intergroup conflict, influences similar to those that promoted the development of ethnic identities and communities among European immigrants. See Ronald L. Taylor, Black Ethnicity and the Persistence of Ethnogenesis, 84 AM. J. SOC. 1401 (1979).
124. See, e.g., ENLOE, supra note 35, at 24-25; TRIBE, supra note 26, at 1518 (discussing subjugation of black Americans through slavery and segregation and the role color played in institutionalizing that system); see also LAWRENCE W. LEVINE, BLACK CULTURE AND BLACK CONSCIOUSNESS (1977); MOORE, supra note 31, at 173-200; cf. Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107, 148-55 (1976). See generally NATHAN GLAZER & DANIEL P. MOYNIHAN, BEYOND THE MELTING POT 52 (1963) (arguing that slavery, prejudice, discrimination, and associated factors have created a communal group out of African Americans); JORDAN, supra note 32 (exploring attitudes of society toward African Americans and association of race with social status as slaves). Ronald Taylor has argued that black ethnicity is not purely the result of exclusion, but has been and is also influenced by migration, urbanization, and intergroup conflict, influences similar to those that promoted the development of ethnic identities and communities among European immigrants. See Ronald L. Taylor, Black Ethnicity and the Persistence of Ethnogenesis, 84 AM. J. SOC. 1401 (1979).
125. See, e.g., ENLOE, supra note 35, at 24-25; TRIBE, supra note 26, at 1518 (discussing subjugation of black Americans through slavery and segregation and the role color played in institutionalizing that system); see also LAWRENCE W. LEVINE, BLACK CULTURE AND BLACK CONSCIOUSNESS (1977); MOORE, supra note 31, at 173-200; cf. Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107, 148-55 (1976). See generally NATHAN GLAZER & DANIEL P. MOYNIHAN, BEYOND THE MELTING POT 52 (1963) (arguing that slavery, prejudice, discrimination, and associated factors have created a communal group out of African Americans); JORDAN, supra note 32 (exploring attitudes of society toward African Americans and association of race with social status as slaves). Ronald Taylor has argued that black ethnicity is not purely the result of exclusion, but has been and is also influenced by migration, urbanization, and intergroup conflict, influences similar to those that promoted the development of ethnic identities and communities among European immigrants. See Ronald L. Taylor, Black Ethnicity and the Persistence of Ethnogenesis, 84 AM. J. SOC. 1401 (1979).
126. See, e.g., ENLOE, supra note 35, at 24-25; TRIBE, supra note 26, at 1518 (discussing subjugation of black Americans through slavery and segregation and the role color played in institutionalizing that system); see also LAWRENCE W. LEVINE, BLACK CULTURE AND BLACK CONSCIOUSNESS (1977); MOORE, supra note 31, at 173-200; cf. Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107, 148-55 (1976). See generally NATHAN GLAZER & DANIEL P. MOYNIHAN, BEYOND THE MELTING POT 52 (1963) (arguing that slavery, prejudice, discrimination, and associated factors have created a communal group out of African Americans); JORDAN, supra note 32 (exploring attitudes of society toward African Americans and association of race with social status as slaves). Ronald Taylor has argued that black ethnicity is not purely the result of exclusion, but has been and is also influenced by migration, urbanization, and intergroup conflict, influences similar to those that promoted the development of ethnic identities and communities among European immigrants. See Ronald L. Taylor, Black Ethnicity and the Persistence of Ethnogenesis, 84 AM. J. SOC. 1401 (1979).
127. See, e.g., ENLOE, supra note 35, at 24-25; TRIBE, supra note 26, at 1518 (discussing subjugation of black Americans through slavery and segregation and the role color played in institutionalizing that system); see also LAWRENCE W. LEVINE, BLACK CULTURE AND BLACK CONSCIOUSNESS (1977); MOORE, supra note 31, at 173-200; cf. Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107, 148-55 (1976). See generally NATHAN GLAZER & DANIEL P. MOYNIHAN, BEYOND THE MELTING POT 52 (1963) (arguing that slavery, prejudice, discrimination, and associated factors have created a communal group out of African Americans); JORDAN, supra note 32 (exploring attitudes of society toward African Americans and association of race with social status as slaves). Ronald Taylor has argued that black ethnicity is not purely the result of exclusion, but has been and is also influenced by migration, urbanization, and intergroup conflict, influences similar to those that promoted the development of ethnic identities and communities among European immigrants. See Ronald L. Taylor, Black Ethnicity and the Persistence of Ethnogenesis, 84 AM. J. SOC. 1401 (1979).
128. Cf. NAACP v. Alabama, 357 U.S. 449, 460 (1957).
129. See, e.g., Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976). Of course, a particular religion may be practiced by a single person in a nonorganized fashion and still be entitled to the protections of the Religion Clauses. See Frazee v. Illinois Dep't of Employment Sec., 489 U.S. 829 (1989).
130. Other structural conditions that have been pointed to as reasons for new immigrants and even American-born individuals to join ethnic communities are de facto residential segregation and occupational concentration in particular fields. See generally Claude S. Fischer, Toward a Subcultural Theory of Urbanism, 80 AM. J. SOC. 1319, 1330-38 (1975) (arguing tnat urbanization is a cause of ethnic identity formation); William L. Yancey et al., Emergent Ethnicity: A Review and Reformulation, 41 AM. Soc. REV. 391 (1976).
131. Other structural conditions that have been pointed to as reasons for new immigrants and even American-born individuals to join ethnic communities are de facto residential segregation and occupational concentration in particular fields. See generally Claude S. Fischer, Toward a Subcultural Theory of Urbanism, 80 AM. J. SOC. 1319, 1330-38 (1975) (arguing tnat urbanization is a cause of ethnic identity formation); William L. Yancey et al., Emergent Ethnicity: A Review and Reformulation, 41 AM. Soc. REV. 391 (1976).
132. For instance, African American culture has over time acquired many of the same characteristics associated with other cultures, including distinctive arts and music, a special holiday "Kwanzaa," see generally CEDRIC MCCLESTER, KWANZAA (1990), by some accounts even a unique English dialect, see YINGER, supra note 41, at 307-11 (discussing forms of and studies about African American vernacular English language), and a distinctive form of Christianity, see id. at 265-68 (discussing recent studies of early African American religions that characterize those religions as "distinctive form[s] of Christianity"); see also MOORE, supra note 31, at 173-200.
133. For instance, African American culture has over time acquired many of the same characteristics associated with other cultures, including distinctive arts and music, a special holiday "Kwanzaa," see generally CEDRIC MCCLESTER, KWANZAA (1990), by some accounts even a unique English dialect, see YINGER, supra note 41, at 307-11 (discussing forms of and studies about African American vernacular English language), and a distinctive form of Christianity, see id. at 265-68 (discussing recent studies of early African American religions that characterize those religions as "distinctive form[s] of Christianity"); see also MOORE, supra note 31, at 173-200.
134. For instance, African American culture has over time acquired many of the same characteristics associated with other cultures, including distinctive arts and music, a special holiday "Kwanzaa," see generally CEDRIC MCCLESTER, KWANZAA (1990), by some accounts even a unique English dialect, see YINGER, supra note 41, at 307-11 (discussing forms of and studies about African American vernacular English language), and a distinctive form of Christianity, see id. at 265-68 (discussing recent studies of early African American religions that characterize those religions as "distinctive form[s] of Christianity"); see also MOORE, supra note 31, at 173-200.
135. With respect to ethnicity, significant, if not complete, overlap is to be expected since ethnic groups oftentimes are defined or define themselves in large part along religious lines.
136. YINGER, supra note 38, at 89-90. Suppositions about the overlap of religious and ethnic/racial affiliation has in the past also led to (mis)labeling of particular racial groups. For instance, Asian Indians were referred to generically as "Hindus" even though "only a small fraction of the Asian-Indian immigrants were actually believers of Hinduism. One third were Muslim, and the majority were Sikhs." TAKAKI, supra note 32, at 295.
137. See JORDAN, supra note 32, at 20-24, 40-43 (arguing that justification for slavery arose out of the view that African Americans were heathens). Jordan notes that slavery was also justified based on the alien cultural practices of African Americans. See also Paul Finkelman, The Crime of Color, 67 TUL. L. REV. 2063, 2072-75 (1993) ("[I]n the seventeenth century, when English settlers first adopted slavery, the very 'heathenism' of Africans made them subject to slavery."); Gotanda, supra note 3, at 33.
138. See JORDAN, supra note 32, at 20-24, 40-43 (arguing that justification for slavery arose out of the view that African Americans were heathens). Jordan notes that slavery was also justified based on the alien cultural practices of African Americans. See also Paul Finkelman, The Crime of Color, 67 TUL. L. REV. 2063, 2072-75 (1993) ("[I]n the seventeenth century, when English settlers first adopted slavery, the very 'heathenism' of Africans made them subject to slavery."); Gotanda, supra note 3, at 33.
139. See JORDAN, supra note 32, at 20-24, 40-43 (arguing that justification for slavery arose out of the view that African Americans were heathens). Jordan notes that slavery was also justified based on the alien cultural practices of African Americans. See also Paul Finkelman, The Crime of Color, 67 TUL. L. REV. 2063, 2072-75 (1993) ("[I]n the seventeenth century, when English settlers first adopted slavery, the very 'heathenism' of Africans made them subject to slavery."); Gotanda, supra note 3, at 33.
140. From this point forward, I will use the term "race" in the discrimination context to refer to both racial as well as ethnic and national origin/ancestral discrimination. The Supreme Court has applied the same scrutiny to such discrimination. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 223-24 (1995); Hernandez v. Texas, 347 U.S. 475, 479 (1954); Hirabayashi v. United States, 320 U.S. 81, 100 (1943). But see Juan F. Perea, Ethnicity and the Constitution: Beyond the Black and White Binary Constitution, 36 WM. & MARY L. REV. 571 (1995) (arguing that ethnicity is not fully protected). References to ethnicity will be made to refer to ancestral notions of cultural groups. I also like to avoid the use of the term "black" and "white," unless called for in the particular context or used by others, because they create a false dichotomy and are not very descriptive of the cultural issues addressed here. But see Gotanda, supra note 3, at 4 n.12. In that same sense, religion jurisprudence does not speak in terms of Christian versus non-Christian religions.
141. Modern revisionist interpretations of the Religion Clauses have ascribed to the framers of the Constitution only two principles: "to protect state religious establishments from national displacement, and to prevent the national government from aiding some but not all religions." TRIBE, supra note 26, at 1161. But see CURRY, supra note 19, at 207-22. Whether that view or the traditional view, that the Religion Clauses were intended to erect a wall of separation between church and state generally, see Lemon v. Kurtzman, 403 U.S. 602, 622 (1971); TRIBE, supra note 26, 1278-82; Jesse H. Choper, The Establishment Clause and Aid to Parochial Schools, 56 CAL. L. REV. 260, 273 (1968), is correct is of little importance to the analysis here.
142. Modern revisionist interpretations of the Religion Clauses have ascribed to the framers of the Constitution only two principles: "to protect state religious establishments from national displacement, and to prevent the national government from aiding some but not all religions." TRIBE, supra note 26, at 1161. But see CURRY, supra note 19, at 207-22. Whether that view or the traditional view, that the Religion Clauses were intended to erect a wall of separation between church and state generally, see Lemon v. Kurtzman, 403 U.S. 602, 622 (1971); TRIBE, supra note 26, 1278-82; Jesse H. Choper, The Establishment Clause and Aid to Parochial Schools, 56 CAL. L. REV. 260, 273 (1968), is correct is of little importance to the analysis here.
143. Modern revisionist interpretations of the Religion Clauses have ascribed to the framers of the Constitution only two principles: "to protect state religious establishments from national displacement, and to prevent the national government from aiding some but not all religions." TRIBE, supra note 26, at 1161. But see CURRY, supra note 19, at 207-22. Whether that view or the traditional view, that the Religion Clauses were intended to erect a wall of separation between church and state generally, see Lemon v. Kurtzman, 403 U.S. 602, 622 (1971); TRIBE, supra note 26, 1278-82; Jesse H. Choper, The Establishment Clause and Aid to Parochial Schools, 56 CAL. L. REV. 260, 273 (1968), is correct is of little importance to the analysis here.
144. Modern revisionist interpretations of the Religion Clauses have ascribed to the framers of the Constitution only two principles: "to protect state religious establishments from national displacement, and to prevent the national government from aiding some but not all religions." TRIBE, supra note 26, at 1161. But see CURRY, supra note 19, at 207-22. Whether that view or the traditional view, that the Religion Clauses were intended to erect a wall of separation between church and state generally, see Lemon v. Kurtzman, 403 U.S. 602, 622 (1971); TRIBE, supra note 26, 1278-82; Jesse H. Choper, The Establishment Clause and Aid to Parochial Schools, 56 CAL. L. REV. 260, 273 (1968), is correct is of little importance to the analysis here.
145. See CURRY, supra note 19, at 222;
146. WILSON & DRAKEMAN, supra note 19, at 76 (quoting 1 ANNALS OF CONG. 731 (Joseph Gales ed., 1789)) (statement of Madison expressing opinion that purpose of the Religion Clauses should be to prevent preeminence of one or two sects and compulsion to conform to those sects); see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993) ("'historical instances of religious persecution and intolerance . . . gave concern to those who drafted the Free Exercise Clause'") (quoting Bowen v. Roy, 476 U.S. 693, 703 (1986) (omission added). The adoption of the Fourteenth Amendment was, of course, the result of slavery and the Civil War.
147. The individual need only show that the religious belief is sincerely held; inquiry into its substantive truth is prohibited. See United States v. Ballard, 322 U.S. 78, 86-87 (1944). The prohibition guards against impermissible restrictions on the free exercise of religion, see TRIBE, supra note 26, at 1181-83, or impermissible establishment of particular forms of religions. See Jesse H. Choper, Defining "Religion" in the First Amendment, 1982 U. ILL. L. REV. 579, 579-80 ("Indeed, the very idea of a legal definition of religion may be viewed as an 'establishment' of religion in violation of the first amendment.") (citation omitted); Stanley Ingber, Religion or Ideology: A Needed Clarification of the Religion Clauses, 41 STAN. L. REV. 233, 240 (1989). But see United States v. Seeger, 380 U.S. 163, 166 (1965) (construing conscientious-objector exemption of the selective service statute, which specifically only referred to religious objections, to cover nontheistic and other belief systems that "occup[y] a place in the life of its possessor parallel to that filled by the orthodox belief in God").
148. The individual need only show that the religious belief is sincerely held; inquiry into its substantive truth is prohibited. See United States v. Ballard, 322 U.S. 78, 86-87 (1944). The prohibition guards against impermissible restrictions on the free exercise of religion, see TRIBE, supra note 26, at 1181-83, or impermissible establishment of particular forms of religions. See Jesse H. Choper, Defining "Religion" in the First Amendment, 1982 U. ILL. L. REV. 579, 579-80 ("Indeed, the very idea of a legal definition of religion may be viewed as an 'establishment' of religion in violation of the first amendment.") (citation omitted); Stanley Ingber, Religion or Ideology: A Needed Clarification of the Religion Clauses, 41 STAN. L. REV. 233, 240 (1989). But see United States v. Seeger, 380 U.S. 163, 166 (1965) (construing conscientious-objector exemption of the selective service statute, which specifically only referred to religious objections, to cover nontheistic and other belief systems that "occup[y] a place in the life of its possessor parallel to that filled by the orthodox belief in God").
149. The individual need only show that the religious belief is sincerely held; inquiry into its substantive truth is prohibited. See United States v. Ballard, 322 U.S. 78, 86-87 (1944). The prohibition guards against impermissible restrictions on the free exercise of religion, see TRIBE, supra note 26, at 1181-83, or impermissible establishment of particular forms of religions. See Jesse H. Choper, Defining "Religion" in the First Amendment, 1982 U. ILL. L. REV. 579, 579-80 ("Indeed, the very idea of a legal definition of religion may be viewed as an 'establishment' of religion in violation of the first amendment.") (citation omitted); Stanley Ingber, Religion or Ideology: A Needed Clarification of the Religion Clauses, 41 STAN. L. REV. 233, 240 (1989). But see United States v. Seeger, 380 U.S. 163, 166 (1965) (construing conscientious-objector exemption of the selective service statute, which specifically only referred to religious objections, to cover nontheistic and other belief systems that "occup[y] a place in the life of its possessor parallel to that filled by the orthodox belief in God").
150. Cf. Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96 COLUM. L. REV. 2083, 2099-101 (1996).
151. 304 U.S. 144 (1938). Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Id. at 153 n.4 (citations omitted); see also JOHN HART ELY, DEMOCRACY AND DISTRUST 135-79 (1980). Both the Free Exercise Clause and the Establishment Clause, even though distinct and separately set out, have been characterized as complements of each other in providing for religious equality. See Hall, supra note 15, at 50 (suggesting that the Equal Protection Clause and Religion Clauses converge in the suspectness of the use of either religion or race for classification purposes). For a critique of Carotene Products's conception of "discrete and insular minorities," see Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713 (1985).
152. 304 U.S. 144 (1938). Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Id. at 153 n.4 (citations omitted); see also JOHN HART ELY, DEMOCRACY AND DISTRUST 135-79 (1980). Both the Free Exercise Clause and the Establishment Clause, even though distinct and separately set out, have been characterized as complements of each other in providing for religious equality. See Hall, supra note 15, at 50 (suggesting that the Equal Protection Clause and Religion Clauses converge in the suspectness of the use of either religion or race for classification purposes). For a critique of Carotene Products's conception of "discrete and insular minorities," see Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713 (1985).
153. See, e.g., Capital Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, _, 115 S. Ct. 2440, 2450 (1995) (holding Ku Klux Klan-erected cross on public property protected by Free Speech Clause); see also Gotanda, supra note 3, at 10-12.
154. See, e.g., Robert M. Cover, The Origin of Judicial Activism in the Protection of Minorities, 91 YALE L.J. 1287, 1296 (1982) ("'Discrete and insular' minorities are not simply losers in the political arena, they are perpetual losers. Indeed, to say that they lose in the majoritarian political process is seriously to distort the facts: they are scapegoats in the real political struggles between other groups."); see also John Hart Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. CHI. L. REV. 723, 732-33 (1974).
155. See, e.g., Robert M. Cover, The Origin of Judicial Activism in the Protection of Minorities, 91 YALE L.J. 1287, 1296 (1982) ("'Discrete and insular' minorities are not simply losers in the political arena, they are perpetual losers. Indeed, to say that they lose in the majoritarian political process is seriously to distort the facts: they are scapegoats in the real political struggles between other groups."); see also John Hart Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. CHI. L. REV. 723, 732-33 (1974).
156. See DWORKIN, supra note 44, at 228; RAWLS, supra note 46, at 222.
157. See T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 COLUM. L. REV. 1060, 1071-72 (1991). It is also in this sense that African Americans may be "invisible" to the rest of society - attempts at self-definition are ignored, and instead what is known about African Americans is only what a "white"-dominated culture perceives of them. See id. at 1069-70.
158. See, e.g., Lawrence, supra note 59, at 331-36.
159. Of course, social, scientific, and philosophical approaches to the law, such as law and economics, have been used widely.
160. In fact, up until the 1960s, the primary vehicle for protecting religious freedom was the Free Speech Clause. See, e.g., Capital Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, _, 115 S. Ct. 2440, 2446 (1995). The importance of protecting religious beliefs under the Free Speech Clause is also recognized in the political discourse of our nation. But see Ingber, supra note 83, at 244-45 (arguing that the scope of protection for religion is more expansive than that for speech, assembly, and equal protection); John H. Mansfield, The Religion Clauses of the First Amendment and the Philosophy of the Constitution, 72 CAL. L. REV. 847, 852-54 (1984). Some commentators have argued that even the Free Speech Clause protects aspects of personal identity. See, e.g., David Cole & William N. Eskridge, Jr., From Hand-Holding to Sodomy: First Amendment Protection of Homosexual (Expressive) Conduct, 29 HARV. C.R.-C.L. L. REV. 319, 330-35, 337-41 (1994).
161. In fact, up until the 1960s, the primary vehicle for protecting religious freedom was the Free Speech Clause. See, e.g., Capital Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, _, 115 S. Ct. 2440, 2446 (1995). The importance of protecting religious beliefs under the Free Speech Clause is also recognized in the political discourse of our nation. But see Ingber, supra note 83, at 244-45 (arguing that the scope of protection for religion is more expansive than that for speech, assembly, and equal protection); John H. Mansfield, The Religion Clauses of the First Amendment and the Philosophy of the Constitution, 72 CAL. L. REV. 847, 852-54 (1984). Some commentators have argued that even the Free Speech Clause protects aspects of personal identity. See, e.g., David Cole & William N. Eskridge, Jr., From Hand-Holding to Sodomy: First Amendment Protection of Homosexual (Expressive) Conduct, 29 HARV. C.R.-C.L. L. REV. 319, 330-35, 337-41 (1994).
162. This aspect of the Religion Clauses was most prominently implicated in Wisconsin v. Yoder, 406 U.S. 205 (1972), where application of the Free Speech Clause might not have provided sufficient protections. See also discussion infra Part I.D.3. Religious belief, in contrast to many other types of beliefs or opinions, by being the result of an inner compulsion without an alternative, is thus constitutive of the self. See Dorf, supra note 64, at 1215; Christopher L. Eisgruber, The Fourteenth Amendment's Constitution, 69 S. CAL. L. REV. 47, 92-94 (1995). Another indication that it is the identity function of religion that is of great concern to the Court has been the cases involving conscientious objectors to the draft. In those cases the Court found, after greatly contorting the statutory language, that the exemption applied even though the individual seeking the exemption did not hold the statutorily required religious belief, but did oppose war on deeply held grounds that were integral to his conception of existence and thus his self-identity. See Welsh v. United States, 398 U.S. 333, 339-40, 342 (1970), in which a conscientious objector justified his refusal to serve as, "I can only act according to what I am . . . ." See also United States v. Seeger, 380 U.S. 163, 185 (1965).
163. While a religious practitioner may technically be able to separate the overt religious practices from himself or herself to avoid discrimination, free exercise prevents the government from using the power of "punishment" based on an activity as an alternative means to the power of "punishment" based on status (as a certain religious adherent). But see Reynolds v. United States, 98 U.S. 145, 164-66 (1878).
164. See Ely, supra note 87, at 729-30. The defeat of a group's interest in the political process does not automatically make it a discrete and insular minority, just as remedial legislation as an act of grace from the majority does not translate into equal political participation. See id. at 729. It is therefore necessary to look beyond the mere loss of a particular legislative battle to determine which groups are discrete and insular.
165. Defining relevant aspects of cultural identity, in addition to race, ethnicity, and religion and the exact boundaries of that concept, is beyond the scope of this Article though language and maybe cultural dress would probably be covered. See also infra discussion accompanying notes 202-04. However, Avishai Margalit and Joseph Raz have identified criteria of cultural distinctiveness in a related context - justifications for political self-government rights - that are instructive here. See Margalit & Raz, supra note 39, at 439. Some of the criteria that might be appropriate here are: (1) possession of a shared common character or culture, (2) characteristics that permit mutual recognition, (3) group membership that is integral to self-identity, and (4) membership that is a matter of belonging and not of achievement. See also YINGER, supra note 41, at 3-5, 141-44 (discussing types of socially and psychologically significant ethnic groups as opposed to administrative or classificatory groupings). Furthermore, the relationship between the majority and minority groups, the "cultural distinctiveness" of the minority from the majority, may be relevant as well. See Aviam Soifer, On Being Overly Discrete and Insular: Involuntary Groups and the Anglo-American Judicial Tradition, 48 WASH. & LEE L. REV. 381, 408 (1991).
166. The Supreme Court's jurisprudence has continued to emphasize that the rights protected under the Fourteenth Amendment are individual rights rather than rights of a group. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 226 (1995); Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 289-94 (1978). Ascribing significance to an individual's membership in a particular cultural group does not speak to the rights of the group, only to the rights of the individual. In this sense, protections or benefits accruing to an individual are not based solely on "membership in a particular group," Bakke, 438 U.S. at 299, but rather on the specific harm suffered by the individual - due to and connected to membership in a particular group. Considering cultural group membership as important to individuals does not conflict in any way with the individual-centered focus of the Equal Protection Clause. See David Chang, Discriminatory Impact, Affirmative Action, and Innocent Victims: Judicial Conservatives or Conservative Justices?, 91 COLUM. L. REV. 790, 798-99 (1991).
167. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (emphasis added).
168. In the religion context, the terminology for "equality" has frequently been couched in that of "neutrality," though for the purposes here, the meaning is the same. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 559 (1993) (Souter, J., concurring). See generally Douglas Laycock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 DEPAUL L. REV. 993 (1990). I will use the term "equality" to refer to neutrality as used in the religion context.
169. See, e.g., CURRY, supra note 19, at 199; see also Church of the Lukumi, 508 U.S. at 532; Larson v. Valente, 456 U.S. 228, 244-45 (1982); Hall, supra note 15, at 77-88 (discussing the influence of the equality principle in the religion context); Jane Rutherford, Equality as the Primary Constitutional Value: The Case for Applying Employment Discrimination Laws to Religion, 81 CORNELL L. REV. 1049 (1996). In that sense, both establishment and free exercise form complementary notions of religious equality, both providing guarantees against religious discrimination and thus protecting religious liberty. See Abington Sch. Dist. v. Schempp, 374 U.S. 203, 256-59 (1962) (Brennan, J., concurring).
170. See, e.g., Hall, supra note 15; Michael A. Paulsen, Religion, Equality and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 NOTRE DAME L. REV. 311 (1986).
171. See Wallace v. Jaffree, 472 U.S. 38, 52-53 (1984); Larson, 456 U.S. at 244; Everson v. Board of Educ., 330 U.S. 1, 15 (1947).
172. See Church of the Lukumi, 508 U.S. at 532; Larson, 456 U.S. at 245 ("Madison's vision . . . naturally assumed that every denomination would be equally at liberty to exercise and propagate its beliefs."); see also Bob Jones Univ. v. United States, 461 U.S. 574, 604 n.30 (1982) (noting it is well settled that neither state nor government may favor one religion over another).
173. See Gillette v. United States, 401 U.S. 437, 449 n.14 (1971) (noting that the equal protection claim is "not an independent argument in the context of these cases"). In Walz v. Tax Commission of New York, 397 U.S. 664, 696 (1970) (Harlan, J., concurring), Justice Harlan stated that religious neutrality "in its application requires an equal protection mode of analysis." See also Paulsen, supra note 101, at 315 (suggesting an equal protection approach to Establishment Clause adjudication).
174. See Larson, 456 U.S. at 246-47; infra note 109. The extent to which the Supreme Court's statements regarding religion as a suspect form of classification under the Equal Protection Clause and those regarding religious discrimination as violative of due process are distinct lines of reasoning (or are one and the same) is unclear. However, since the Due Process Clause contains an equal protection component out of which protection against invidious religious discrimination springs, there should be no distinction between the analysis under either. Thus, it is irrelevant whether one proceeds under the Due Process Clause or the Equal Protection Clause.
175. See Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963); Choper, supra note 2, at 504. But see Employment Div., Or. Dep't of Human Resources v. Smith, 494 U.S. 872 (1990) (holding the Free Exercise Clause permits the State to prohibit sacramental peyote use).
176. The principle "equal protection of the laws" was "so clearly within the spirit of the Declaration of Independence . . . that no member of this House [could] seriously object to it." CONG. GLOBE, 39th Cong., 1st Sess. 2510 (1866) (statement of Rep. Miller), reprinted in THE RECONSTRUCTION AMENDMENTS' DEBATES 215 (Alfred Alvins ed., 1967) [hereinafter RECONSTRUCTION AMENDMENTS].
177. Id. at 2502 (statement of Rep. Raymond), reprinted in RECONSTRUCTION AMENDMENTS, supra note 107, at 214; see also id. at 2539 (statement of Rep. Farnsworth) (recognizing a general notion of equality arising out of the Equal Protection Clause), reprinted in RECONSTRUCTION AMENDMENTS, supra note 107, at 217.
178. Id. at 2502 (statement of Rep. Raymond), reprinted in RECONSTRUCTION AMENDMENTS, supra note 107, at 214; see also id. at 2539 (statement of Rep. Farnsworth) (recognizing a general notion of equality arising out of the Equal Protection Clause), reprinted in RECONSTRUCTION AMENDMENTS, supra note 107, at 217.
179. Id. at 2530 (statement of Rep. Randall) (stating "[t]he first section proposes to make an equality in every respect between the two races," even though he opposed it), reprinted in RECONSTRUCTION AMENDMENTS, supra note 107, at 216; see also id. at 2961 (statement of Sen. Poland) ("[This amendment] is the very spirit and inspiration of our system of government, the absolute foundation upon which it was established. It is essentially declared in the Declaration of Independence and in all the provisions of the Constitution."), reprinted in RECONSTRUCTION AMENDMENTS, supra note 107, at 230; id. at 2766 (statement of Sen. Howard) ("[This amendment] abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another."), reprinted in RECONSTRUCTION AMENDMENTS, supra note 107, at 220; id. at 2539 (statement of Rep. Farnsworth) ("I . . . hope that Congress and the people of the several States may yet rise above a mean prejudice and do equal and exact justice to all men, by putting in practice that 'self-evident truth' of the Declaration of Independence."), reprinted in RECONSTRUCTION AMENDMENTS, supra note 107, at 217.
180. Id. at 2530 (statement of Rep. Randall) (stating "[t]he first section proposes to make an equality in every respect between the two races," even though he opposed it), reprinted in RECONSTRUCTION AMENDMENTS, supra note 107, at 216; see also id. at 2961 (statement of Sen. Poland) ("[This amendment] is the very spirit and inspiration of our system of government, the absolute foundation upon which it was established. It is essentially declared in the Declaration of Independence and in all the provisions of the Constitution."), reprinted in RECONSTRUCTION AMENDMENTS, supra note 107, at 230; id. at 2766 (statement of Sen. Howard) ("[This amendment] abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another."), reprinted in RECONSTRUCTION AMENDMENTS, supra note 107, at 220; id. at 2539 (statement of Rep. Farnsworth) ("I . . . hope that Congress and the people of the several States may yet rise above a mean prejudice and do equal and exact justice to all men, by putting in practice that 'self-evident truth' of the Declaration of Independence."), reprinted in RECONSTRUCTION AMENDMENTS, supra note 107, at 217.
181. Id. at 2530 (statement of Rep. Randall) (stating "[t]he first section proposes to make an equality in every respect between the two races," even though he opposed it), reprinted in RECONSTRUCTION AMENDMENTS, supra note 107, at 216; see also id. at 2961 (statement of Sen. Poland) ("[This amendment] is the very spirit and inspiration of our system of government, the absolute foundation upon which it was established. It is essentially declared in the Declaration of Independence and in all the provisions of the Constitution."), reprinted in RECONSTRUCTION AMENDMENTS, supra note 107, at 230; id. at 2766 (statement of Sen. Howard) ("[This amendment] abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another."), reprinted in RECONSTRUCTION AMENDMENTS, supra note 107, at 220; id. at 2539 (statement of Rep. Farnsworth) ("I . . . hope that Congress and the people of the several States may yet rise above a mean prejudice and do equal and exact justice to all men, by putting in practice that 'self-evident truth' of the Declaration of Independence."), reprinted in RECONSTRUCTION AMENDMENTS, supra note 107, at 217.
182. Id. at 2530 (statement of Rep. Randall) (stating "[t]he first section proposes to make an equality in every respect between the two races," even though he opposed it), reprinted in RECONSTRUCTION AMENDMENTS, supra note 107, at 216; see also id. at 2961 (statement of Sen. Poland) ("[This amendment] is the very spirit and inspiration of our system of government, the absolute foundation upon which it was established. It is essentially declared in the Declaration of Independence and in all the provisions of the Constitution."), reprinted in RECONSTRUCTION AMENDMENTS, supra note 107, at 230; id. at 2766 (statement of Sen. Howard) ("[This amendment] abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another."), reprinted in RECONSTRUCTION AMENDMENTS, supra note 107, at 220; id. at 2539 (statement of Rep. Farnsworth) ("I . . . hope that Congress and the people of the several States may yet rise above a mean prejudice and do equal and exact justice to all men, by putting in practice that 'self-evident truth' of the Declaration of Independence."), reprinted in RECONSTRUCTION AMENDMENTS, supra note 107, at 217.
183. See id. at 1034 (statement by Rep. Bingham, drafter of amendment) ("[E]very word of the proposed amendment is to-day in the Constitution of our country."), reprinted in RECONSTRUCTION AMENDMENTS, supra note 107, at 150. Congressional debates over the Freedmen's Bureau, which was designed to help only the former slaves during the Reconstruction period and not all others in the former confederate southern states, support that view. See also Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 397-98 (1978) (Marshall, J., dissenting); Eric Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 VA. L. REV. 753, 784-88 (1985).
184. See id. at 1034 (statement by Rep. Bingham, drafter of amendment) ("[E]very word of the proposed amendment is to-day in the Constitution of our country."), reprinted in RECONSTRUCTION AMENDMENTS, supra note 107, at 150. Congressional debates over the Freedmen's Bureau, which was designed to help only the former slaves during the Reconstruction period and not all others in the former confederate southern states, support that view. See also Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 397-98 (1978) (Marshall, J., dissenting); Eric Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 VA. L. REV. 753, 784-88 (1985).
185. See, e.g., Hall, supra note 15; Kenneth L. Karst, Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 42 (1977); Paulsen, supra note 101, at 315.
186. See Karst, supra note 111, at 5 (discussing equality of citizenship as an underlying principle of the Equal Protection Clause); cf. Jenness v. Fortson, 403 U.S. 431, 442 (1971) ("Sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike . . . .") (construing Williams v. Rhodes, 393 U.S. 23 (1968)); TRIBE, supra note 26, at 1438-39, 1514-16 (discussing equality in terms of treating people as equals and subjecting them to identical treatment, and the prohibition on subjugation of others); Pepper, supra note 49, at 50 (arguing that the Free Exercise Clause can be viewed as a "guaranty of substantive rather than merely formal equality") (emphasis in original). From a different perspective, these two components of the equality principle constitute the ideal of equality and its social reality that Richard Wasserstrom has analyzed in the context of racism and sexism. See Richard A. Wasserstrom, Racism, Sexism, and Preferential Treatment: An Approach to the Topics, 24 UCLA L. REV. 581 (1977).
187. See Sherbert v. Verner, 374 U.S. 398 (1963); see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 559-63 (1993) (Souter, J., concurring). One commentator has argued that unlike religion jurisprudence, where the Court has been "concerned with both aspects of the formal principle of equality . . . that the similar be treated similarly and the different be treated differently," in the equal protection context the Court has been "oriented toward a difference-denying perspective," that everybody should be treaty similarly. Hall, supra note 15, at 50-52.
188. See Bowen v. Roy, 476 U.S. 693 (1986); Sherbert, 374 U.S. at 398 (permitting governmental consideration of religion as a means of accommodating free exercise); Quaring v. Peterson, 728 F.2d 1121 (8th Cir. 1984), aff'd per curiam sub nom. Jensen v. Quaring, 472 U.S. 478 (1985); see also TRIBE, supra note 26, at 1163. But see Employment Div., Or. Dep't of Human Resources v. Smith, 494 U.S. 872 (1990).
189. Thus in Brown v. Board of Education, 347 U.S. 483, 486-88 n.1 (1954), the defendant school board improved the segregated school's facility during the course of the litigation so that by the time the case reached the Supreme Court, the physical facilities were considered equal in their physical aspects. However, "separate but equal" in the context of segregation could never satisfy the requirements of the Equal Protection Clause in spite of the equality of available educational facilities because of the message and badge of racial inferiority it imposed on African Americans. See id.; see also Karst, supra note 33, at 323 (suggesting that "separate but equal" has a stigmatizing effect).
190. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 230-31 (1995) (prohibiting differing benign treatment of minorities under the Equal Protection Clause).
191. See supra note 85 and accompanying text; supra Part I.B.2.
192. See Church of the Lukumi, 508 U.S. at 524-25.
193. See supra text accompanying notes 29-30.
194. It has been suggested that the authors of the Fourteenth Amendment did not intend to incorporate and extend the applicability of the Establishment Clause to the states. Because a subsequent constitutional amendment proposal (the "Blaine Amendment") sought to achieve such a result explicitly, such an amendment "would have been superfluous . . . if the Fourteenth Amendment had already made the Establishment Clause binding upon the States." Abington Sch. Dist. v. Schempp, 374 U.S. 203, 257 (1962) (Brennan, J., concurring). Justice Brennan replied to this argument, arguing that the Establishment Clause and the Free Exercise Clause work together to guarantee religious liberty as it was incorporated into the Fourteenth Amendment, and that the "religious liberty embodied in the Fourteenth Amendment would not be viable if the Constitution were interpreted to forbid only establishments ordained by Congress." Id. at 258 (Brennan, J., concurring).
195. See, e.g., Brown v. Board of Educ., 347 U.S. 483 (1954). Moreover, the Fifteenth Amendment, by making specific reference to race, makes explicit what is implicit in the Thirteenth and Fourteenth Amendments - that race is a subject of particular concern to the Constitution.
196. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 291-97 (1978).
197. See supra note 120.
198. See, e.g., Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 334-40 (1987) (involving an Establishment Clause challenge to federal legislation and citing religion cases involving state actions, including Lemon v. Kurtzman, 403 U.S. 602 (1971), as precedent for holding); Bob Jones Univ. v. United States, 461 U.S. 574, 602-04 (1983) (same); see also Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 705 (1994) (involving an Establishment Clause challenge to state legislation and citing Amos in support).
199. See Cantwell v. Connecticut, 310 U.S. 296 (1990) (applying the Free Exercise Clause to the states through the Due Process Clause of the Fourteenth Amendment); Everson v. Board of Educ., 330 U.S. 1 (1947) (applying the Establishment Clause to the states through the Fourteenth Amendment).
200. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995) (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975)). See generally Kenneth L. Karst, The Fifth Amendment Guarantee of Equal Protection, 55 N.C. L. REV. 541 (1977) (tracing the evolution of equal protection as it arose from the Fifth Amendment). The Supreme Court has noted that equal protection guarantees under the Fifth Amendment may be applied differently where the federal government acts in accordance with "overriding national interests." Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976); see Karst, supra, at 560-62. One such exception may be Congress's special constitutional power over aliens. See Hampton, 426 U.S. at 101-02 n.21.
201. See Adarand, 515 U.S. at 224; Boiling v. Sharpe, 347 U.S. 497, 500 (1954) ("[I]t would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government."). Kenneth Karst has called this overlap in functions the "congruence" of the Due Process Clause with the Equal Protection Clause. See Karst, supra note 126, at 552-58. "Thus, to the degree that a statute is (in equal protection language) 'overinclusive,' it also invites a due process attack, since it restricts liberty without justification." Id. at 547; see also Joseph Tussman & Jacobus tenBroek, The Equal Protection of the Laws, 37 CAL. L. REV. 341, 363 (1949) (noting the overlapping guarantees of the Due Process and Equal Protection Clauses). Thus, whether the protection of religious rights might come under an equal protection category of protected fundamental rights or a suspect classification, the distinction is largely irrelevant since the protections are the same.
202. Akhil Amar has argued that complete incorporation of the Religion Clauses into the Fourteenth Amendment has actually changed the understanding of the Religion Clauses, and focused the guarantees of the Religion Clauses more on the interests affecting the individual. See Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1157-62 (1991).
203. See United States v. Armstrong, 116 S. Ct. 1480, 1486 (1996) (upholding equal protection component of Fifth Amendment Due Process Clause); McCleskey v. Kemp, 481 U.S. 279, 291 n.8 (1987) (stating Equal Protection Clause is violated if criminal enforcement is based on an "'unjustifiable standard such as race, religion, or other arbitrary classification.'") (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)); see also Burlington N. R.R. v. Ford, 504 U.S. 648, 651 (1992) (observing that Montana's venue rules do not classify "along suspect lines like race or religion"); New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (noting that race, religion, and alienage are "inherently suspect distinctions"); cf. United States v. Carotene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
204. See Choper, supra note 2, at 493-500; cf. Employment Div., Or. Dep't of Human Resources v. Smith, 494 U.S. 872, 886 n.3 (1990) (restating principle that laws burdening religious exercise are subject to same scrutiny as racial classifications). Compare Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 579 (1993) (Blackmum, J., concurring) ("When a law discriminates against religion . . . , it automatically will fail strict scrutiny . . . .") (citing Sherbert v. Verner, 374 U.S. 398, 402-03, 407 (1963) (omission added)), and Larson v. Valente, 456 U.S. 228, 246 (1982) ("[W]hen we are presented with a . . . law granting a denominational preference, our precedents demand that we treat the law as suspect and that we apply strict scrutiny."), with Adarand, 515 U.S. at 200, and Korematsu v. United States, 323 U.S. 214, 216 (1944) ("[L]egal restrictions which curtail the civil rights of a single racial group are immediately suspect . . . [and] courts must subject them to the most rigid scrutiny.").
205. See Smith, 494 U.S. at 901 (O'Connor, J., concurring in the judgment) ("[T]he First Amendment unequivocally makes freedom of religion, like freedom from race discrimination . . . a 'constitutional norm,' not an 'anomaly.'"); Verner, 374 U.S. 398 (suggesting that the compelling interest test is applicable to discrimination against religious practices). Compare Larson, 456 U.S. at 247 ("[A] rule must be invalidated unless it is justified by a compelling governmental interest . . . and unless it is closely fitted to further that interest . . . ."), with Adarand, 515 U.S. at 227 (holding that all racial "classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests").
206. See Church of the Lukumi, 508 U.S. at 540. Justice Kennedy analyzes the legislative history of the religiously discriminatory statute at issue in a fashion similar to that used in the equal protection context. See id. The Court's opinion in Church of the Lukumi is somewhat unclear because even though the justices were unanimous in the result, several concurring opinions arose. See id. at 522, 557-59. Because only Justice Stevens specifically joined the legislative intent analysis of Justice Kennedy's opinion, and because Chief Justice Rehnquist and Justice Scalia specifically did not join in this part, it is unclear to what extent legislative intent analysis for religious discrimination claims enjoys support from the Court.
207. 403 U.S. 602 (1971). To avoid running afoul of the Establishment Clause, Lemon requires that (1) the government action have a secular legislative purpose, (2) its primary effect neither advances nor inhibits religion, and (3) it does not foster excessive government entanglement with religion. See id. at 612. The Lemon test has been the subject of criticism by members of the Court and commentators. See e.g., Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 720-721 (1994) (O'Connor, J., concurring); TRIBE, supra note 26, at 1210-13.
208. See Ira C. Lupu, Keeping the Faith: Religion, Equality and Speech in the U.S. Constitution, 18 CONN. L. REV. 739, 742-49 (1986). However, Ira Lupu also asserts that there are significant differences between the two fields. See id. at 749-55, 761-69. Thus, Lupu argues that a compelling state interest exists as a defense to a claim of race discrimination, while no defenses to Establishment Clause claims exist. See id. at 753-54. A finding of establishment, of course, is a legal conclusion that ends the Establishment Clause inquiry, whereas a finding of race discrimination may not. But while labeling a relevant factor in a legal analysis as a justification defense to a claim as opposed to an element of the claim has ramifications on who bears the burden of proof in a trial (and as a result may affect the substantive outcome), such labels are of little importance in determining the substantive legal merits of a claim. All factors must still be considered. The Court appears to have essentially condoned the establishment of religion under a "long-standing-practice" justification. See e.g., Epstein, supra note 84, at 2086. The legal significance of discriminatory impact in both contexts is discussed infra Part II.C.
209. See Lupu, supra note 134, at 744.
210. Id. at 746. This prong of the Lemon test also promotes substantive equality between religious practitioners and nonpractitioners. See also Paulsen, supra note 101, at 326-31.
211. Lupu, supra note 134, at 744-45.
212. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
213. See, e.g., Larson v. Valente, 456 U.S. 228 (1982).
214. See, e.g., Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 138 (1987); Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707 (1981); Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963).
215. See Meyer, 262 U.S. at 399, 401-03; see also Martha Minow, We, the Family: Constitutional Rights and American Families, in THE CONSTITUTION AND AMERICAN LIFE 299, 303 (David Thelen ed., 1988). The law was targeted at immigrants, whose primary language was not English. By forcing them to give up part of their cultural distinctiveness, the law sought to force quicker assimilation. See Meyer 262 U.S. at 401-03; see also Yu Cong Eng v. Trinidad, 271 U.S. 500, 524-25 (1925) (holding Philippine law prohibiting Chinese merchants from keeping their books in Chinese, even if that was their only language, violative of the Philippine equivalent of the Fourteenth Amendment Due Process Clause).
216. Cf. Planned Parenthood v. Casey, 505 U.S. 833, 848 (1992) (citing Meyer as authority).
217. Meyer, 262 U.S. at 402.
218. 268 U.S. 510 (1925).
219. Id. at 535.
220. Wisconsin v. Yoder, 406 U.S. 205, 233 (1972) (quoting Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925)).
221. Casey, 505 U.S. at 851.
222. See Loving v. Virginia, 388 U.S. 1, 12 (1967) (holding state prohibition on interracial marriage not only void based on equal protection grounds but also void based on its deprivation of a liberty interest protected by the Due Process Clause).
223. See Casey, 505 U.S. at 835 (citing as authority Griswold v. Connecticut, 381 U.S. 479 (1965)).
224. See Kenneth L. Karst, The Freedom of Intimate Associations, 89 YALE L.J. 624, 635-37 (1980).
225. Roberts v. United States Jaycees, 468 U.S. 609, 618-19 (1984). Thus, family life plays a role in any definition of liberty: [T]he personal affiliations that exemplify these considerations, and that therefore suggest some relevant limitations on the relationships that might be entitled to this sort of constitutional protection, are those that attend the creation and sustenance of family - marriage, childbirth, the raising and education of children, and cohabitation with one's relatives. Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life. Id. at 619-20 (citations omitted); see also Bowers v. Hardwick, 478 U.S. 186, 203-06 (1986) (Blackmum, J., dissenting). In Bowers, the Court refused to recognize such a right in regard to one's sexual orientation. See id. at 194-96. However, the Court did allow states to accord some protection to orientation in Romer v. Evans, 116 S. Ct. 1620 (1996).
226. It is also this relationship between parent and child that was of crucial importance to the Old Order Amish. See Wisconsin v. Yoder, 406 U.S. 205, 222 (1972) (construing Meyer v. Nebraska to suggest that exemption from compulsory education beyond eighth grade may be necessary because education is "viewed as the preparation of the child for life in the separated agrarian community that is the keystone of the Amish Faith"). The right asserted there was that of the Amish parents to shape their children in their own faith so that the children could be more easily integrated into Amish society. Because religious beliefs and values were so central to Amish identity and because public education beyond the eighth grade, when values incompatible with the Amish way of life would be taught, would have interfered with formation of Amish beliefs and values, public high school education was objectionable. See id. at 211-12. Only basic education that "does not significantly expose their children to worldly values or interfere with their development in the Amish community during the crucial adolescent period" was acceptable. Id. at 212. Compulsory high school education would have destroyed the Old Order Amish church community. See id. at 211.
227. See Moore v. City of E. Cleveland, 431 U.S. 494, 503-04 (1977) ("It is through the family that we inculcate and pass down many of our cherished values, moral and cultural."); see also Block v. Rutherford, 468 U.S. 576, 599 (1984) (Marshall, J., dissenting) (noting the constitutionally protected freedom to "cultivate familial relations"); Smith v. Organization of Foster Families, 431 U.S. 816, 843-44 (1977) ("'[Marriage] is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.'") (quoting Griswold, 381 U.S. at 486). This view assumes of course that a child is an empty vessel, with no interest in cultural identity independent of the parent. Limits to parental control over children and the legitimacy of governmental concern over the rights of children with respect to their parents have been recognized, see Prince v. Massachusetts, 321 U.S. 158 (1944); see also TRIBE, supra note 26, at 1299-1300, and include interests in ensuring that children are not neglected or abused, see Parham v. J.R., 442 U.S. 584, 604 (1979), and that the rights of others are not interfered with, see Runyon v. McCrary, 427 U.S. 160, 176-79 (1976).
228. See, e.g., Casey, 505 U.S. at 848 (relying on Pierce and Meyer as governing authority). The Court's willingness to extend the conscientious-objector exemption from the federal draft to persons who oppose military service based on beliefs similar in nature to religion, but not religious in nature, see Welsh v. United States, 398 U.S. 333, 340-41 (1970), can be justified under this interpretation of the Due Process Clause. However, Juan Perea has discounted Meyer as precedent for protections accorded to ethnic identity because of Meyer's connection to the conception of substantive due process born in Lochner v. New York, 198 U.S. 45 (1905). See Perea, supra note 80, at 593. But see Ira C. Lupu, Untangling the Strands, 77 MICH. L. REV. 981, 988-89 (1979) ("[S]urvival of [Meyer and Pierce] . . . suggests that the only durable objection to the Lochner era's handiwork is that it generally selected the 'wrong' values for protection.").
229. This interpretation also provides a rationale for the equal protection guarantee that the Court has found in the Due Process Clause. Because due process protects cultural identity, it also protects individuals to some extent from being treated in a manner that is totally contrary to their own conception of themselves, that is, treated as inferior and unequal, instead of as full and equal human beings. Naturally, this view of due process and equal protection also shields even nonminority individuals as well as individuals discriminated against based on a mistaken belief. In both instances, the individual's identity is equally harmed.
230. For instance, in Hernandez v. New York, 500 U.S. 352, 362 (1991), because of the case's posture as a peremptory strike challenge, foreign language-discrimination claims were resolved under the Equal Protection Clause even though the more appropriate analytical framework would have been the Due Process Clause. For a detailed discussion of Hernandez, see Part II.C.
231. A converse approach has been suggested by David Steinberg, who argues that religious accommodations should be analyzed under the Court's affirmative action jurisprudence. See David E. Steinberg, Religious Exemptions as Affirmative Action, 40 EMORY L.J. 77 (1991). However, such an approach, if generally applied to religious exemptions, would be highly unsatisfactory since there is no mandatory accommodation equivalent in the race-equal-protection context. See discussion infra Part II.C.
232. Lupu, supra note 134, at 745-46; see also Larson v. Valente, 456 U.S. 228, 245 (1982) (noting that religious freedom "can be guaranteed only when legislators - and voters - are required to accord to their own religions the very same treatment given to small, new, or unpopular denominations").
233. The United States Supreme Court itself has been more religiously diverse than racially diverse. Although the Supreme Court used to be the province of "white" Protestant men, its first Catholic justice, Roger Taney, was appointed in 1836. Louis Brandeis was the Court's first Jew in 1916. In contrast, the first woman, Sandra Day O'Connor, did not join the Court until 1981. The first African American to join the Court was Thurgood Marshall in 1967. At present, there are three Catholics and two Jews on the Court. There are two women and one African American. There have never been any Asian American, Latin American, or Native American justices. See THE SUPREME COURT JUSTICES: ILLUSTRATED BIOGRAPHIES, 1789-1993, at 476, 506 (Clare Cushman ed., 1993); Tony Mauro, The Court's Religious Conversion, LEGAL TIMES, July 1, 1996, at 8.
234. See Aleinikoff, supra note 89, at 1071-72.
235. See Lupa, supra note 134, at 743. In the sense that the overwhelming majority of colonial, and later American, citizens were Christians, there has been one majority religion. Arguably, this has resulted in the acceptance of ceremonial deism by the Court. See Epstein, supra note 84. However, to the extent that the various Christian religious sects do act monolithically, a countervailing force in the current politics of religion has been irreligionists and other individuals with a weak sense of religious identity (i.e., their interest in resisting movement toward affiliations by government with Christianity or any religion generally).
236. Arguably, the overwhelming support for the congressional enactment of the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb to bb-4 (1994) (held unconstitutional by City of Boerne v. Flores, 117 S. Ct. 2157 (1997)), passed in response to the Supreme Court's decision affecting a Native American religion in Employment Division, Oregon Department of Human Resources v. Smith, 494 U.S. 872 (1990), demonstrates this greater sensitivity toward religious minorities. See Destro, supra note 7, at 8. But see Boerne, 117 S. Ct. 2157 (holding that the RFRA exceeded Congress's power under § 5 of the Fourteenth Amendment). Of course, it is true that the religious minority groups that have been most successful at integrating with the majority have almost exclusively been "white." Yet, that should not detract from the progress that integration has been able to achieve with regard to these groups. It also arguably demonstrates that racial and religious exclusion are related and simply different facets of the same phenomenon.
237. The lack of a reciprocity of perspectives has arguably been the most important cause for the Supreme Court's sanctioning of discrimination against racial minorities in the past. American history, from Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), to Plessy v. Ferguson, 163 U.S. 537 (1896), to Korematsu v. United States, 323 U.S. 214 (1944), has borne this out. In this regard, the Supreme Court's reliance on the continuing vitality of Korematsu, the only case where an explicit racial classification was upheld after strict scrutiny review, is very distressing. Even though Korematsu is today commonly known as epitomizing the invidious role of racial prejudice in depriving a racial minority group of American citizens of their civil rights, which recently resulted in a congressional apology, see 50 U.S.C. § 1989 (1988), Korematsu's proposition that "[political judgments regarding the necessity for the particular classification may be weighed in the constitutional balance, [even though] the standard of justification will remain constant," Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995) (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 299 (1978), and citing Korematsu, 323 U.S. at 214), remains unquestioned by the Court. Yet, it was precisely based on politically expedient reasons, reasons based on racial prejudice, that led the Court to uphold internment of Japanese Americans during World War II in spite of the heightened scrutiny. This appears to remain valid even today.
238. Justice O'Connor has written: [T]he Establishment Clause is infringed when the government makes adherence to religion relevant to a person's standing in the political community. Direct government action endorsing religion or a particular religious practice is invalid under this approach because it "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Wallace v. Jaffree, 472 U.S. 38, 69 (1985) (O'Connor, J., concurring) (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J., concurring)); see also Lawrence, supra note 59.
239. See James U. Blacksher, Majority Black Districts, Kiryas Joel, and Other Challenges to American Nationalism, 26 CUMB. L. REV. 407, 431 (1995-1996) ("Those who contend that the Free Exercise Clause endorses affirmative state accommodation of religions . . . point out how well the First Amendment has already accomplished its original objective of forestalling national disunity along religious lines.").
240. See Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687 (1994); Lemon v. Kurtzman, 403 U.S. 602 (1971); see also Paulsen, supra note 101, at 345-46 (tracing the historical concept of how the prohibition on entanglement prevents undue government influence of religion).
241. 347 U.S. 483 (1954); see Christopher L. Eisgruber, Ethnic Segregation by Religion and Race: Reflections on Kiryas Joel and Shaw v. Reno, 26 CUMB. L. REV. 515 (1995-1996).
242. See discussion supra Part I.D.3.
243. See MARTHA MINOW, MAKING ALL THE DIFFERENCE 117 (1990) ("The root of prejudice is the separation between groups that exaggerates difference."). The Supreme Court has frequently expressed its concern about the potential for affirmative action to institutionalize racial divisions. See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986) (Powell, J., plurality opinion) (observing that societal discrimination could be used to "uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future"); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 298-99 (1978). However, Karst has argued that present affirmative action programs do not create such a danger. See Karst, supra note 33, at 344. Neil Gotanda has described "white supremacy" as the Establishment Clause analog in the equal protection context. See Gotanda, supra note 3, at 67.
244. See MINOW, supra note 169, at 117 ("Isolation itself may contribute to false views of difference which impede mutual relationships."); Aleinikoff, supra note 89, at 1071-72.
245. Viewed from a perspective that fostering commonalities between different cultural groups is a desirable governmental activity, the secular-purpose-and-effect prong of the Lemon test ensures that government focuses on purposes and effects that people can agree on independent of their religious beliefs or nonbeliefs. In this sense, secular purpose and effect is not an opposite of sectarian purpose and effect, but rather refers to purposes and effects that transcend those of particular religions or have become so much a part of American civic culture that they have taken on a nonreligious meaning. Cf. Lynch v. Donnelly, 465 U.S. 668, 683 (1984) (asserting in dictum that display of religious paintings in governmentally supported museums would not be an advancement of religion); benMiriam v. Office of Personnel Management, 647 F. Supp. 84, 86 (M.D.N.C. 1986) (discussing the use of the Christian dating system). Of course, what has become so much a part of American civic culture that it has taken on a nonreligious meaning is subject to debate. See Choper, supra note 83; Ingber, supra note 83, at 310-15 (discussing distinction of nonreligious matters, matters independent of religion/existence of sacred or divine, and irreligious matters, which oppose or are hostile to religion, and arguing that the nonreligious are not subject to the constraints of the Religion Clauses). Compare Marsh v. Chambers, 463 U.S. 783, 792 (1983) ("In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society."), with id. at 797 (Brennan, J., dissenting) (arguing that legislative prayer "is nothing but a religious act").
246. 512 U.S. 687 (1994).
247. See generally Johnson, supra note 13.
248. See Freeman v. Pitts, 503 U.S. 467 (1992); see also Greene, supra note 2, at 31-35. But see Milliken v. Bradley, 433 U.S. 267, 272 (1977) (approving district court decree requiring, in addition to a pupil reassignment plan for Detroit school system, a number of "educational components," including remedial reading, revised testing and counseling programs, and training programs for teachers).
249. Cf. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 315 (1986) (Stevens, J., dissenting) ("It is one thing for a white child to be taught by a white teacher that color, like beauty, is only 'skin deep'; it is far more convincing to experience that truth on a day-to-day basis during the routine, ongoing learning process."). It is in this context that affirmative action programs must be considered. See infra Part II.D.2.
250. See discussion supra Part I.D.1. However, Abner Greene has recently argued that the Court is moving toward using the same approach in religion cases that it is presently following in race cases - treating like cases alike. See Greene, supra note 2, at 63-70.
251. See Bowen v. Roy, 476 U.S. 693 (1986) (plurality opinion); Jensen v. Quaring, 472 U.S. 478 (1985); Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963). The Court has stated: Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial. Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 717-18 (1981). The availability of mandatory religious accommodation appears to have been restricted in Employment Division, Oregon Department of Human Resources v. Smith, 494 U.S. 872 (1990), which held that criminal drug prohibitions need not be tailored to provide religious exemptions to a peyote user to eàse incidental effects on free exercise rights, regardless of the severity of the burden on the religious practitioner. See also City of Boerne v. Flores, 117 S. Ct. 2157, 2161 (1997) (stating that "Smith held that neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest") (case name not italicized in original). However, Smith has been severely criticized, by, among others, Justice Souter who joined the Court after Smith and who has called for its reexamination. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 559-77 (1993) (Souter, J., concurring); see also Pepper, supra note 49, at 35-37. Justice O'Connor, in her concurrence in Smith, characterized the decision as particularly involving a significant interest by the state in combating drug dealing and addiction. See Smith, 494 U.S. at 904 (O'Connor, J., concurring in the judgment). Subsequent to Smith, the state of Oregon approved a legislative accommodation for religious peyote users. See Greene, supra note 2, at 78 n.318.
252. Mandatory accommodation is called for by the Free Exercise Clause and is to be distinguished from legislative (or permissive) accommodations that are undertaken by the government on its own. It is neither required by the Free Exercise Clause nor prohibited under the Establishment Clause. See, e.g., Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987); Wisconsin v. Yoder, 406 U.S. 205, 222 n.11 (1972) (discussing exemption in 26 U.S.C. § 1402(h) for Old Order Amish from obligation to pay social security taxes); Gillette v. United States, 401 U.S. 437 (1971); Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963) (Brennan, J., concurring) (supporting the unconstitutionality of required Bible recitations in public schools); Zorach v. Clauson, 343 U.S. 306 (1952) (holding school district policy permitting children to leave school early in order to attend classes in religious instruction elsewhere is constitutional); McCollum v. Board of Educ., 333 U.S. 203 (1948) (prohibiting religious instruction on premises during school hours). Legislative accommodations are thus related to racial affirmative action programs. See Fullilove v. Klutznick, 448 U.S. 448 (1980); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978); Greene, supra note 2, at 70. But see Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
253. See, e.g., Michael W. McConnell, Accommodation of Religion: An Update and a Response to the Critics, 60 GEO. WASH. L. REV. 685, 693 (1992); see also Ira C. Lupu, Reconstructing the Establishment Clause: The Case Against Discretionary Accommodation of Religion, 140 U. PA. L. REV. 555 (1991) (arguing that Religion Clauses protect only formal religious equality and that mandatory accommodation is preferable over legislative (permissive) accommodation).
254. See, e.g., Michael W. McConnell, Accommodation of Religion: An Update and a Response to the Critics, 60 GEO. WASH. L. REV. 685, 693 (1992); see also Ira C. Lupu, Reconstructing the Establishment Clause: The Case Against Discretionary Accommodation of Religion, 140 U. PA. L. REV. 555 (1991) (arguing that Religion Clauses protect only formal religious equality and that mandatory accommodation is preferable over legislative (permissive) accommodation).
255. Of course, the Court's terminology in those cases is cast in the language of burdens on free exercise. See Sherbert, 374 U.S. at 403. But in order for the Court to determine whether a burden is truly a burden for free exercise purposes, it has had to resort to comparisons with the treatment of other religions by government. See id. at 406; see also Smith, 494 U.S. at 879-98 (O'Connor, J., concurring in the judgment).
256. See supra Part I.D.1.
257. 426 U.S. 229 (1976).
258. It has been suggested that the result in Davis was driven by the Court's perception that the relief called for by the effects of past discrimination was beyond the power of the court. See TRIBE, supra note 26, at 1451, 1511-12 (stressing legitimating function of courts); Hall, supra note 15, at 71-72; Eric Schnapper, Perpetuation of Past Discrimination, 96 HARV. L. REV. 828, 850-51 (1983) (arguing that innocence of government can serve as limitation on remedy but not as defense to liability); Kathleen M. Sullivan, Sins of Discrimination: Last Term's Affirmative Action Cases, 100 HARV. L. REV. 78, 89 (1986) (terming this approach the "sin-based" paradigm). But while the Court's holding may have been correct in denying relief for reasons of its inability to remedy general societal and past discrimination, the Court's reasoning and broad holding that a discriminatory effect is irrelevant is not justifiable.
259. It has been suggested that the result in Davis was driven by the Court's perception that the relief called for by the effects of past discrimination was beyond the power of the court. See TRIBE, supra note 26, at 1451, 1511-12 (stressing legitimating function of courts); Hall, supra note 15, at 71-72; Eric Schnapper, Perpetuation of Past Discrimination, 96 HARV. L. REV. 828, 850-51 (1983) (arguing that innocence of government can serve as limitation on remedy but not as defense to liability); Kathleen M. Sullivan, Sins of Discrimination: Last Term's Affirmative Action Cases, 100 HARV. L. REV. 78, 89 (1986) (terming this approach the "sin-based" paradigm). But while the Court's holding may have been correct in denying relief for reasons of its inability to remedy general societal and past discrimination, the Court's reasoning and broad holding that a discriminatory effect is irrelevant is not justifiable.
260. Justice O'Connor herself has noted that burdens "that, in effect, make abandonment of one's own religion or conformity to the religious beliefs of others the price of an equal place in the civil community" violate the guarantee of religious equality. Smith, 494 U.S. at 897-98 (O'Connor, J., concurring in the judgment) (emphasis added). It is this recognition that neutral laws can impose burdens and thus discriminate against minorities that leaves one puzzled by the Court's statement in Davis that "we have difficulty understanding how a law establishing a racially neutral qualification for employment is nevertheless racially discriminatory." Davis, 426 U.S. at 245.
261. In Davis, the Court was asked to adopt the Title VII standard as an Equal Protection Clause test for discriminatory impact. That test, applicable in employment discrimination cases under the federal civil rights laws, would have imposed a fairly minimal burden and would not have compromised the ability of the government to select qualified candidates, though it would have prevented the use of criteria irrelevant to the particular government program at issue. See Davis, 426 U.S. at 246-47. This test largely parallels the inquiry in the application of mandatory religious accommodations. While in the particular context of Davis, application of such a test would not have changed the result since the Court determined that the program's qualification criteria were relevant for Title VII purposes, see id. at 248-52, the use of Title VII itself in the employment discrimination context has proven to be a workable standard designed to eliminate from consideration those criteria that are not related to job qualifications.
262. It is precisely because racial minorities are unable to use the political process effectively to avert such harms, whether imposed "in spite of less burdensome alternatives or "because of racial prejudice, that equal protection concerns are triggered, as in United States v. Carotene Products Co., 304 U.S. 144, 152 n.4 (1938), and that covert racial discrimination, cloaked in the mantle of majoritarian politics and under the guise of protection of the status quo, can escape the scrutiny of the Equal Protection Clause. See Karst, supra note 33, at 338.
263. 426 U.S. 229.
264. Even though using judicially mandated affirmative action programs as a remedy to discrimination claims, see United States v. Paradise, 480 U.S. 149 (1987); Local Number 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501 (1986), can be seen as an attempt to remedy past discrimination, that is, treating different cases differently, they are not equivalent to mandatory accommodation. Court-sanctioned affirmative action programs are imposed only upon a showing of intentional discrimination and appear themselves to be subject to the same strict scrutiny test as other forms of affirmative action. See City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); Stuart v. Roache, 951 F.2d 446, 449 (1st Cir. 1991). Thus, except for being imposed by a court, court-sanctioned affirmative action is more similar to ordinary forms of discrimination remedies or legislative affirmative action programs. See discussion infra Part II.D.
265. See supraPart I.D.3.
266. 500 U.S. 352 (1991).
267. Accommodation outside of the religion context, though only mandated by Congress, has made its appearance in the Americans with Disabilities Act. See 42 U.S.C. §§ 12,101, 12,112(b)(5)(A)(1994). See generally id. §§ 12,101-213 (1994).
268. See Hernandez, 500 U.S. at 352. Discrimination against individuals whose primary spoken language is a language other than English can be subject to equal protection scrutiny because language is often used as proxy for race or ethnicity. Those excluded would largely be individuals of non-English-speaking ethnic or racial ancestry. See, e.g., Antonio J. Califa, Declaring English the Official Language: Prejudice Spoken Here, 24 HARV. C.R.-C.L. L. REV. 293 (1989); Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 77 MINN. L. REV. 269, 350-71 (1992); cf. Hernandez v. Texas, 347 U.S. 475 (1954).
269. See Hernandez, 500 U.S. at 352. Discrimination against individuals whose primary spoken language is a language other than English can be subject to equal protection scrutiny because language is often used as proxy for race or ethnicity. Those excluded would largely be individuals of non-English-speaking ethnic or racial ancestry. See, e.g., Antonio J. Califa, Declaring English the Official Language: Prejudice Spoken Here, 24 HARV. C.R.-C.L. L. REV. 293 (1989); Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 77 MINN. L. REV. 269, 350-71 (1992); cf. Hernandez v. Texas, 347 U.S. 475 (1954).
270. See Hernandez, 500 U.S. at 356-57.
271. 476 U.S. 79 (1986).
272. Washington v. Davis, 426 U.S. 229 (1976).
273. Hernandez, 500 U.S. at 364.
274. This is a term Justice Stevens used in describing judicial attempts at facilitating linguistic minorities in becoming jurors. See id. at 379 (Stevens, J., dissenting). This statement provides an interesting contrast to Justice Stevens's joinder in Justice Scalia's concurrence in City of Boerne v. Flores, 117 S. Ct. 2157, 2172-76 (1997) (Scalia, J., concurring inpart), a case which sought to reaffirm Employment Division, Oregon Department of Human Resources v. Smith, 494 U.S. 872 (1990). One explanation, which is consistent with the perspective here, may be that Justice Stevens views linguistic accommodations on the same order of necessity and importance as the religious accommodations in Wisconsin v. Yoder, 406 U.S. 205 (1972), and Sherbert v. Verner, 374 U.S. 398 (1963).
275. By the same token, peremptory challenges based on religious beliefs should raise equal suspicions. See Davis v. Minnesota, 511 U.S. 1115, 1115-16 (1994) (Ginsburg, J., concurring in the denial of certiorari) ("'[O]rdinarily . . . . inquiry on voir dire into a juror's religious affiliation and beliefs is irrelevant and prejudicial, and to ask such questions is improper.'") (quoting State v. Davis, 504 N.W.2d 767, 771 (Minn. 1993) (omission in original)).
276. Of course, Hernandez also peculiarly involved the special interests of criminal trial defendants to a diverse jury under the Sixth Amendment as well as the court's interest in the integrity and uniform use of and accessibility to the testimony presented by all jurors. See Hernandez, 500 U.S. at 361-63.
277. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833 (1992); Voder, 406 U.S. 205; Meyer v. Nebraska, 262 U.S. 390 (1923).
278. Hernandez is also a product of the tension that Davis has created between the notion of substantive equality and the Court's assimilation jurisprudence. This tension resulted in even a staunch conservative such as Chief Justice Rehnquist joining Justice Kennedy's opinion. See Hernandez, 500 U.S. at 355.
279. Id. at 364, 370.
280. In that sense, English-only laws, such as the state law at issue in Yniguez v. Arizonans for Official English, 69 F.3d 920 (9th Cir. 1995), vacated as moot sub nom. Arizonans for Official English v. Arizona, 117 S. Ct. 1055 (1997), which affirmatively prohibit the speaking of a language other than English, as opposed to requiring English-proficiency, would impair the right of minority cultural group members to maintain their own identity different from that of the English-monolingual culture. See YINGER, supra note 41, at 315-18. However, in the lower courts, Arizonans for Official English has been analyzed only under free speech principles. The Supreme Court itself declined to resolve the substantive issues and vacated the lower court's decision on mootness grounds. See Arizonans for Official English, 117 S. Ct. at 1071.
281. See Kelley v. Johnson, 425 U.S. 238, 251 (1976) (Marshall, J., dissenting) (arguing that governmental control over a citizen's personal appearance forces the individual "to sacrifice substantial elements of his integrity and identity"); New Rider v. Board of Educ., 414 U.S. 1097 (1973) (Douglas, J., dissenting from the denial of certiorari); see also J. Harvie Wilkinson & G. Edward White, Constitutional Protection for Personal Lifestyles, 62 CORNELL L. REV. 563, 600-11 (1977). In Kelley v. Johnson, the Supreme Court did not resolve the issue of whether police officers had a constitutionally protected liberty interest in personal appearance, such as personal grooming, because it found a rational relationship between short hair and public safety which trumped any liberty interest the officers may have had. See Kelley, 425 U.S. at 244-48.
282. See Moore v. City of E. Cleveland, 431 U.S. 494, 498-500 (1977). While the Court declined to adopt sexual orientation as such a liberty interest in Bowers v. Hardwick, 478 U.S. 186 (1986), the Court's most recent ruling in Romer v. Evans, 116 S. Ct. 1620 (1996), appears to cast some doubt on that holding.
283. See Sherbert v. Verner, 374 U.S. 398 (1963).
284. In contrast, governmental actions explicitly directed at aspects of cultural identity (e.g., like explicit racial or religious classifications), rather than indirectly burdening individuals, would continue to be invalid per se. See Planned Parenthood v. Casey, 505 U.S. 833 (1992); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).
285. However, the less minorities remain outsiders, the less that characterization stays applicable. Cf. City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (arguing that heightened scrutiny for city's racial affirmative action program was justified in part by the fact that African Americans made up approximately 50% of city population and held five of nine city council seats).
286. See supra Introduction.
287. See infra Part II.D.2.
288. See supra note 92 and accompanying text.
289. See, e.g., GABRIEL CHIN ET AL., BEYOND SELF-INTEREST 1171-78 (1996); Drew S. Days, III, Fullilove, 96 YALE L.J. 453 (1987) (discussing affirmative action); Lawrence, supra note 59 (discussing racial discrimination and unconscious racism); Ira C. Lupu, The Trouble with Accommodation, 60 GEO. WASH. L. REV. 743 (1992) (discussing religious accommodation); McConnell, supra note 179 (discussing religious accommodation).
290. See, e.g., GABRIEL CHIN ET AL., BEYOND SELF-INTEREST 1171-78 (1996); Drew S. Days, III, Fullilove, 96 YALE L.J. 453 (1987) (discussing affirmative action); Lawrence, supra note 59 (discussing racial discrimination and unconscious racism); Ira C. Lupu, The Trouble with Accommodation, 60 GEO. WASH. L. REV. 743 (1992) (discussing religious accommodation); McConnell, supra note 179 (discussing religious accommodation).
291. See, e.g., GABRIEL CHIN ET AL., BEYOND SELF-INTEREST 1171-78 (1996); Drew S. Days, III, Fullilove, 96 YALE L.J. 453 (1987) (discussing affirmative action); Lawrence, supra note 59 (discussing racial discrimination and unconscious racism); Ira C. Lupu, The Trouble with Accommodation, 60 GEO. WASH. L. REV. 743 (1992) (discussing religious accommodation); McConnell, supra note 179 (discussing religious accommodation).
292. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237-39 (1995) (Scalia & Thomas, JJ., concurring) (overruling Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990)); Croson, 488 U.S. at 520-28 (Scalia, J., concurring).
293. See Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987); Wisconsin v. Yoder, 406 U.S. 205 (1972); Zorach v. Clauson, 343 U.S. 306 (1952). Without exception, religious accommodations are benign because they provide more choices and options to religious practitioners. Affirmative action programs do exactly the same. See Adarand, 515 U.S. 200; Croson, 488 U.S. 469; Wygant v. Jackson Bd. Of Educ., 476 U.S. 267 (1986); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). The religious practitioner or racial minority group member can opt out of the particular program, either by declining to specifically take part in it or by declining to identify oneself as a member of a minority group. In contrast, invidious discrimination restricts choices. Unfortunately, the Court has ignored that important distinction. See Adarand, 515 U.S. 200.
294. See United States v. Seeger, 380 U.S. 163 (1965); The Selective Draft Law Cases, 245 U.S. 366, 374 (1918). The Supreme Court has held that the conscientious-objector provision covers not only religious-belief-based objections to military service but also beliefs that are equivalent to religious beliefs. See Seeger, 380 U.S. at 173. Nevertheless, that does not detract from the fact that the exemption was obviously originally conceived as a religious accommodation with religious objectors in mind.
295. 343 U.S. 306, 309-10 (1952). It is unclear whether Zorach would survive Establishment Clause review today. See Lupu, supra note 212, at 744-45.
296. While Sherbert v. Verner, 374 U.S. 398 (1963), involved a mandatory accommodation, the special benefit granted to Ms. Sherbert could have easily subjected her to suspicions of laziness for her refusal to work on a Saturday. See id. at 407. Instead, she is commonly viewed as having legitimately been unable to satisfy her job's work requirement of Saturday work because of her religious beliefs. Of course, that is in the nature of accommodations - they are granted based on the recognized legitimacy of free exercise. See John H. Garvey, Freedom and Equality in the Religion Clauses, 1981 SUP. CT. REV. 193, 210-14.
297. Of course, the notion of "merit" itself or its definition varies according to the particular circumstances and can be manipulated.
298. See, e.g., Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256 (1979); Bakke, 438 U.S. at 406 (Blackmun, J., dissenting).
299. See Bakke, 438 U.S. at 404 (Blackmun, J., dissenting).
300. See, e.g., 15 U.S.C.A. § 636(a) (West 1997) (authorizing Small Business Administration ("SBA") to make loans for qualified small business concerns); 15 U.S.C.A. § 644(i)-(j) (West Supp. 1997) (permitting federal agencies to designate set-aside contracts for small business concerns and mandating such a set-aside for contracts with a value of between $2500 and $100,000); Government Contracting Programs, 13 C.F.R. § 125 (1997) (SBA regulations regarding set-asides).
301. See, e.g., Bakke, 438 U.S. at 375-76 (Brennan, J., concurring in part and dissenting in part).
302. See, e.g., Aleinikoff, supra note 89, at 1091-92 (discussing
303. Under the Establishment Clause, the government cannot express the values of a particular religion. See Lemon v. Kurtzman, 403 U.S. 602, 602-03 (1971). Similarly, even in the sex-discrimination context, government is not permitted to give effect to social stereotypes. See, e.g., United States v. Virginia, 116 S. Ct. 2264 (1996) (noting that gender roles are product of culture); Stanton v. Stanton, 421 U.S. 7 (1975).
304. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 316-17 (1986) (Stevens, J., dissenting) ("[Consideration of whether the consciousness of race is exclusionary or inclusionary plainly distinguishes [a] valid purpose . . . from a race-conscious decision that would reinforce assumptions of inequality.") (citing Palmore v. Sidoti, 466 U.S. 429 (1984)); Palmore, 466 U.S. at 430-34 (holding that child custody could not be denied to white mother based on societal prejudice her child might encounter due to prospective stepfather's race); Brown v. Board of Educ. (Brown II), 349 U.S. 294, 300 (1955) ("[T]he vitality of [the] constitutional principles [set forth in Brown I] cannot be allowed to yield simply because of disagreement with them."); see also Pennsylvania v. Board of Dirs. of City Trusts, 353 U.S. 230, 230-31 (1957) (per curiam); Shelley v. Kraemer, 334 U.S. 1 (1948) (prohibiting courts from enforcing private racially restrictive covenants on property). It is for these same reasons that rationales of "white backlash" or reinforcement of stereotypes, which also inherently arise out of the evil to be cured, do not justify finding affirmative action programs unconstitutional, though they may bear on legislative policy choices about affirmative action.
305. The Court has indicated that some burdens on "innocent" persons are acceptable. See Wygant, 476 U.S. at 280-81 ("As part of this Nation's dedication to eradicating racial discrimination, innocent persons may be called upon to bear some of the burden of the remedy."); cf. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 230, 235 (1995) (stating that an individual suffers injury when disadvantaged based on his or her race, "whatever that race may be," but declining to indicate whether any such burden would invalidate an affirmative action program); id. at 247 (Stevens, J., dissenting) (arguing that the majority's decision to discriminate against a minority is "fundamentally different from [a] decision to impose incidental costs on the majority . . . to provide a benefit to a disadvantaged minority"). The legislative history of the Fourteenth Amendment indicates that programs that were enacted to exclusively benefit the then recently freed slaves did consider unfairness against "whites" but accepted such unfairness as justified. See Schnapper, supra note 110, at 753. The Supreme Court in Bakke rejected this legislative history as no longer relevant today because American society is no longer made only of "black" and "white." See Bakke, 438 U.S. at 292-93.
306. See Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 722, 724 (1994) (Kennedy, J., concurring); see also Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 709-10 (1985).
307. See McConnell, supra note 179, at 702-05.
308. But see Texas Monthly v. Bullock, 489 U.S. 1, 18 n.8 (1989) ("[Prior] cases . . . involve[d] legislative exemptions that did not, or would not, impose substantial burdens on nonbeneficiaries . . . .").
309. 343 U.S. 306 (1952).
310. Welsh v. United States, 398 U.S. 333, 361 n.13 (1970) (Harlan, J., concurring).
311. See Lupu, supra note 212, at 743-45. But see Bullock, 489 U.S. at 18-19 & n.8.
312. 483 U.S. 327 (1987) (upholding exemption for churches from religious discrimination prohibition under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1).
313. See 42 U.S.C. § 2000e-1 (1994).
314. See Amos, 483 U.S. at 437.
315. 401 U.S. 437, 461-62 (1971).
316. See Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 725 (1994) (Kennedy, J., concurring).
317. See e.g., Texas Monthly v. Bullock, 489 U.S. 1, 18 n.18 (1989) (suggesting that Zorach and Amos did not impose substantial burdens on nonbeneficiaries). Even in Sherbert the court reasoned that its mandated accommodation of a Sabbatarian was permissible because the accommodation did not impose any burdens on others. Yet, the accommodation imposed a burden on all taxpayers who were not Sabbatarians to support Ms. Sherbert for her different religious belief. In that respect, Sherbert is similar to federally funded race-based scholarship programs.
318. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 318-19 (1983) (Stevens, J., dissenting) (comparing lay-off protections for teachers based on race to lay-off protections that might be afforded to gifted young teachers with specific expertise).
319. Of course, incidental burdens on minorities resulting from laws of general application are a common and accepted part of constitutional jurisprudence.
320. Cf. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 375 (1978) (Brennan, J., dissenting). But see Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 709-10 (1985) (invalidating a legislative accommodation requiring that Sabbath-day observers be given that day off based in part on the rationale that the employers and other employees would be substantially economically burdened). Of course this does not mean that being a member of the majority race insulates one against racial discrimination. But it does mean that affirmative action does not impose the stigmatic injury on nonbeneficiaries as invidious forms of discrimination do. See Wasserstrom, supra note 112, at 592-94 (arguing that segregation of bathroom facilities based on race, as opposed to sex, is objectionable because it degrades "black" persons whereas the same is not true for sex segregation of bathrooms); Ronald Dworkin, Why Bakke Has No Case, N.Y. REV. BOOKS, Nov. 10, 1977, at 11, 15 (pointing out that while a "white" person with a lower test score might have been accepted if he were "black," "it is also true, and in exactly the same sense, that he would have been accepted if he had been more intelligent, or made a better impression in his interview. . . . Race is not, in his case, a different matter from these other factors equally beyond his control.") (emphasis in original).
321. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 276 (1995) (Ginsburg, J., dissenting) ("Court review can ensure that preferences are not so large as to trammel unduly upon the opportunities of others or interfere too harshly with legitimate expectations of persons in once-preferred groups."); Metro Broad., Inc. v. FCC, 497 U.S. 547, 596-97 (1990) (holding race-conscious programs permissible if they do not "impose undue burdens on nonminorities") (emphasis in original), overruled by Adarand, 515 U.S. 200; Wygant, 476 U.S. at 282-84; see also Dorf, supra note 64; McConnell, supra note 179, at 702-03; Sullivan, supra note 183, at 87-89.
322. Cf. Dorf, supra note 64. The Court has indicated that some interests weigh more heavily in this calculus than others. Thus, one may have a stronger interest in retaining a job than in obtaining a new job. See Wygant, 476 U.S. at 282-84. Implicit in such balancing is another judgment about the legitimacy of an expectation and the weight of a long-held expectation. Thus, it has been suggested that: Any claim of innocent third parties to be free from harmful consequences rooted in past discrimination is not superior to the constitutional rights of equally innocent black victims. When the burdens of past [and present] discrimination cannot be eliminated entirely, they should be distributed as equitably as possible among blacks and whites alike. Limiting a remedy is appropriate only when that remedy would inflict an injury on third parties that substantially exceeds the harms suffered by the black victims. Schnapper, supra note 183, at 846-47. Greene has suggested that the balancing of benefits to a minority group against the burdens on others should altogether be left to legislative judgment. See Greene, supra note 2, at 82.
323. The Supreme Court has yet to rule on the permissibility of race-based scholarships. But see Hopwood v. Texas, 78 F.3d 932 (5th Cir.) (holding that any consideration of race or ethnicity by state law school for purpose of achieving a diverse student body was not a compelling interest which permitted law school to discriminate on the basis of race in its admissions procedures), cert. denied, 116 S. Ct. 2580 (1996).
324. See Adarand, 515 U.S. at 228; Fullilove v. Klutznick, 448 U.S. 448, 475-78 (1980); Bakke, 438 U.S. at 289.
325. Perversely, the use of quotas and set asides should actually be less disruptive of expectations in the long run than the more amorphous diversity system cited with approval by Justice Powell, see Bakke, 438 U.S. at 315-18, because the official message tells one right from the beginning what to expect - that those few slots are set aside for members of disadvantaged minority groups. Based on that knowledge, no expectation of benefit from that program or the benefits set aside should be formed at all. Cf. Metro Broad., 497 U.S. at 598-99 & n.51. However, a system of quotas would elevate one governmental purpose over all others even though government programs usually seek to achieve multiple aims through a single means. It is in this sense that focusing on race as a single criterion for a set-aside may be so unpalatable, whereas considering membership in a minority group as a "plus" in addition to qualifications valuable for other program goals strikes a more acceptable balance that is in that sense better and more narrowly tailored to the success of an overall program. See Metro Broad., 497 U.S. at 597-98; Bakke, 438 U.S. at 317-18.
326. Similarly, Adarand Constructors could not claim that it actually lost the subcontract it sought. Rather its harm was that the winning minority subcontractor was provided with an advantage in obtaining the contract. See Adarand, 515 U.S. at 263 (Stevens, J., dissenting) (noting that although contractors are given an incentive to hire minority subcontractors, they are not required to do so). How large the set-aside or diminishment in opportunity will be is a separate question over which people may disagree.
327. In this respect, the outcomes of these cases and the Court's rhetoric about protecting the expectations of innocent third parties that are not protected in any other setting have, in essence, permitted nonminority group members, that is, "whites," to assert a property right in the advantages that being "white" confers. Not only does being "white" mean that one has a right to an opportunity to obtain a government benefit, but in fact a right to the benefit itself. See Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1724-45 (1993) (analyzing "whiteness" as a form of property); Schnapper, supra note 183, at 847; see also Sullivan, supra note 183, at 80 (arguing that the Supreme Court's focus on fault and proven past discrimination permits continued challenges to affirmative action by "innocent victims" of such remedies); cf. TRIBE, supra note 26, at 1537 ("[B]ecause white expectations formed within a discriminatory historical context are likely to be inflated, if not wholly unfounded, the level of compensation necessary to relieve whites of the burdens properly attributable to affirmative action should be gauged accordingly."). For a discussion that characterizes the Court's activities in this area as a form of conservative judicial activism, see Chang, supra note 97, at 810-17.
328. While the Court in Bakke recognized that Bakke had only lost the chance to compete for some of the medical school spots, it essentially equated that lost opportunity with the loss of the benefit itself. See Bakke 438 U.S. at 319-20. According to the Court, Bakke was never afforded the chance to compete with applicants from the preferred groups for the special admissions seats. At the same time, the preferred applicants have the opportunity to compete for every seat in the class. . . . [W]hen a State's distribution of benefits or imposition of burdens hinges on ancestry or color of a person's skin, [the classification must be shown to be necessary to promote a substantial state interest]. Id. 250. Usually, individuals are considered undeserving if they appear not to face any special disadvantage and thus do not appear to have a special need for help.
329. See Metro Broad., 497 U.S. at 636 (Kennedy, J., dissenting); Sullivan, supra note 183, at 87-89; see also Myrl L. Duncan, The Future of Affirmative Action: A Jurisprudential/Legal Critique, 17 HARV. C.R.-C.L. L. REV. 503, 516-20 (1982) (discussing the effect of racial discrimination on minority group members).
330. See Metro Broad., 497 U.S. at 636 (Kennedy, J., dissenting); Sullivan, supra note 183, at 87-89; see also Myrl L. Duncan, The Future of Affirmative Action: A Jurisprudential/Legal Critique, 17 HARV. C.R.-C.L. L. REV. 503, 516-20 (1982) (discussing the effect of racial discrimination on minority group members).
331. Of course mandatory accommodations are not subject to this criticism because they must be justified on a specific and compelling basis. See Lupu, supra note 134, at 741-53.
332. See William P. Marshall, The Case Against the Constitutionally Compelled Free Exercise Exemption, 40 CASE W. RES. L. REV. 357, 384 (1990).
333. See McConnell, supra note 179, at 701.
334. See United States v. Ballard, 322 U.S. 78, 81 (1944).
335. For a discussion of mistaken or pretextual racial identification, see Karst, supra note 42, at 335-37. See also Christopher A. Ford, Administering Identity: The Determination of "Race" in Race-Conscious Law, 82 CAL. L. REV. 1231 (1994) (discussing an instance of pretextual use of race and surveying different methods for racial or group categorizations). What is a greater difficulty in justifying affirmative action is the equivalency or proportionality of potential benefits conferred by affirmative action in relation to the detriments experienced by any particular individual. This feature seems to lie at the heart of free-rider arguments against affirmative action. However, just like burdens on others, benefits to those who are unaffected by discrimination or disproportionate benefits should be factors to be weighed in formulating an affirmative action program.
336. See Fullilove v. Klutznick, 448 U.S. 448 (1980); Days, supra note 212, at 453.
337. Other grounds that have been cited as justifications for affirmative action include the present effects of past discrimination, and ongoing discrimination that cannot easily be remedied by antidiscrimination laws, such as subconsciously expressed biases. See, e.g., Duncan, supra note 251, at 510-29 (discussing compensatory justice, distributive justice, and social utility rationales for affirmative action); see also TRIBE, supra note 26, at 1521-44; Ian Ayres, Fair Driving: Gender and Race Discrimination in Retail Car Negotiations, 104 HARV. L. REV. 817 (1991); Schnapper, supra note 183. However, Title VII of the Civil Rights Act of 1964 is one attempt by Congress to get at biases and discrimination without the specific proof of discriminatory intent required elsewhere. See 42 U.S.C. § 2000e(2) (Supp. 1997); Griggs v. Duke Power Co., 401 U.S. 424, 429-31 (1971).
338. Arguably, most legislative accommodations do not operate by religious classifications but by neutral functional criteria that happen to favor particular religions. However, one cannot get around the fact that such accommodations were originally intended to benefit particular religious groups or religion in general. In fact, the conscientious-objector exemption started out as an exemption that applied only to an enumerated set of Christian sects. See The Selective Draft Law Cases, 245 U.S. 366, 374-75 (1918). To that extent, neutral actions taken with a discriminatory motive are equally suspect as explicit racial classifications.
339. 438 U.S. 265 (1978).
340. 497 U.S. 547 (1990), overruled by Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
341. 515 U.S. at 227.
342. See id. at 235.
343. "[W]e wish to dispel the notion that strict scrutiny is 'strict in theory, but fatal in fact.'" Id. at 237 (quoting Fullilove v.Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring)).
344. See Bakke, 438 U.S. at 315-18.
345. See Adarand, 515 U.S. at 219 (pointing out that strict scrutiny was actually applied by Justice Powell in Bakke); see also id. at 257 (Stevens, J., dissenting). According to Justice Stevens, [Nothwithstanding the labels given the standard of review,] the FCC program we upheld in [Metro Broadcasting] would have satisfied any of our various standards in affirmative-action cases - including the one the majority fashions today. . . . The proposition that fostering diversity may provide a sufficient interest to justify such a program is not inconsistent with the Court's holding today. Id. (Stevens, J., dissenting) (emphasis in original); see Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 286 (1986) (O'Connor, J., concurring in part and concurring in the judgment) ("[S]tate interest in the promotion of racial diversity has been found sufficiently 'compelling,' at least in the context of higher education, to support the use of racial considerations . . . ."); Winter Park Communications, Inc. v. FCC, 873 F.2d 347, 353-54 (D.C. Cir. 1989), aff'd sub nom. Metro Broad., 497 U.S. 547, overruled by Adarand, 515 U.S. 200; Davis v. Halpern, 768 F. Supp. 968 (E.D.N.Y. 1991).
346. Bakke, 438 U.S. at 313. Similarly, religious diversity can further similar purposes. See Hall, supra note 66.
347. See Adarand, 515 U.S. at 228 ("[S]trict scrutiny does take 'relevant differences' into account - indeed, that is its fundamental purpose.") (emphasis in original).
348. Metro Broad., 497 U.S. at 636 (Kennedy, J., dissenting) (stating that the diversity rationale is supposedly based "on the demeaning notion that members of the defined racial groups ascribe to certain 'minority views' that must be different from those of other citizens"); see also id. at 618-19 (O'Connor, J., dissenting) (arguing that diversity "impermissibly equat[es] race with thoughts and behavior"). Concerns of this kind of stereotyping are closely related to the debates about racial essentialism in legal academia, a criticism about "a 'univocal,' monolithic theory . . . in which one reductionist voice claims to speak for all similarly situated." Johnson, supra note 63, at 2033; see also Randall L. Kennedy, Racial Critiques of Legal Academia, 102 HARV. L. REV. 1745 (1989) (challenging notion that specific ways of thinking or views are associated with race or ethnicity).
349. See supra Part I.B. In fact, Will Kymlicka distinguishes this conception of individuals from that of communitarians, in that cultural group members are able to "stand back and assess moral values and traditional ways of life," whereas the communitarian perspective denies that dissociation of constitutive aspects of the self is possible. KYMLICKA, supra note 38, at 92.
350. See Aleinikoff, supra note 89, at 1093-95 (discussing essentialism as a criticism of affirmative action diversity programs).
351. See Johnson, supra note 63. For instance, during World War II, young individual Japanese Americans responded, based on their own reasons, in vastly different ways to the indignity of internment, some choosing to remain in internment and others enlisting in the United States military to prove their loyalty to the United States. Likewise, Catholics may have widely varying views about abortion or ordination of women, even though the official stance of the Catholic church is to oppose both.
352. See, e.g., Welsh v. United States, 398 U.S. 333, 358-59 (1970) (Harlan, J., concurring in the judgment) ("Common experience teaches that among 'religious' individuals some are weak and others strong adherents to tenets . . . ."); Johnson, supra note 63, at 2012-20. Even within a particular racial group, for example, belonging can differ. On the specific issue of skin color in the African American community, see KATHY RUSSELL ET AL., THE COLOR COMPLEX (1992).
353. The Court's requirement that race not be the sole factor by which government benefits or burdens are distributed is a simple recognition that government programs and institutions serve a multitude of purposes, one of which may be racial integration. In the education context, diversity programs can contribute to the overall educational mission of the institution. In the employment context, different racial group membership can help a company by providing the multicultural knowledge and skills as well as a multiracial image that can provide greater appeal and marketability in a multiracial American marketplace and a multiracial global economy. See City of Boerne v. Flores, 117 S. Ct. 2157, 2164 (1997) ("There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end."). Even in government contracting, racial diversity can serve an important integrating function. Even though competition for government contracts usually is focused on obtaining the best service or product for the lowest price, that is rarely ever the only goal. See, e.g., 15 U.S.C. § 644(a) (1994). Small businesses must be awarded government contracts if it is determined that it is in the (1) "interest of maintaining or mobilizing the Nation's full productive capacity," (2) "interest of war or national defense programs," (3) "interest of assuring that a fair proportion of the total purchases and contracts for property and services for the Government in each industry category are placed with small-business concerns," or (4) "interest of assuring that a fair proportion of the total sales of Government property be made to small-business concerns." Id. 275. See Karst, supra note 33, at 341-46; Sullivan, supra note 183, at 96; cf. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 374, 377 (1978) (Brennan, J., concurring in judgment in part and dissenting in part) (stating that the purpose of the school's affirmative action program "is to overcome the effects of segregation by bringing the races together"). This purpose differs significantly from Justice Powell's conception of diversity. See id. at 315 (arguing that the sole focus on ethnic diversity can hinder rather than further true diversity).
354. See Metro Broad., Inc. v. FCC, 497 U.S. 547, 601-02 (1990) (Stevens, J., concurring) (arguing that the public value of "an integrated police force . . . is . . . unquestionably legitimate"), overruled by Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); Lynch v. Donnelly, 465 U.S. 668, 691 (1984) ("Celebration of public holidays, [such as Christmas,] which have cultural significance even if they have religious aspects, is a legitimate secular purpose."); infra Part II.D.3; see also Christopher L. Eisgruber, The Constitutional Value of Assimilation, 96 COLUM. L. REV. 87 (1996); cf. Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687 (1994) (prohibiting religious segregation); City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 452, 472-73 n.24 (1985) (holding that although mental retardation is not a quasi-suspect classification, ordinance expressing an irrational prejudice against the mentally retarded and the absence of any rational basis in record for believing that group home would pose any special threat to city's legitimate interests did not pass rational-basis scrutiny).
355. In that respect, other attributes of membership in a different cultural group, such as economic class background, would also be relevant. See Sheila Foster, Difference and Equality: A Critical Assessment of the Concept of " Diversity", 1993 WIS. L. REV. 105. Martha Minow has described the positive as well as negative aspects of such differences as the "dilemma of differences." MINOW, supra note 169, at 19-49; see also Karst, supra note 33, at 311-25 (discussing exclusion as a means of status enhancement for group members).
356. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 315-16 (1986) (Stevens, J., dissenting). It is one thing for a white child to be taught by a white teacher that color, like beauty is only 'skin deep'; it is far more convincing to experience that truth on a day-to-day basis during the routine, ongoing learning process. . . . [T]he fact that persons of different races do, indeed, have differently colored skin, may give rise to a belief that there is some significant difference between such persons. The inclusion of minority teachers in the educational process inevitably tends to dispel that illusion whereas their exclusion could only tend to foster it. Id. at 316 (Stevens, J., dissenting); see e.g., Aleinikoff, supra note 89, at 1081-88 (discussing the benefits of taking the perspective of racial minority groups to better understand the relationship between the dominant and the dominated group); Duncan, supra note 251.
357. In this regard, even affirmative action in government contracting serves an integrative purpose. In Adarand, the affirmative action program provided financial incentives for contractors to subcontract to minority businesses. See Adarand, 515 U.S. at 205-09. By encouraging government contractors to work with minority subcontractors and thus giving them a chance to show that their performance is equal to that of nonminority subcontractors, such programs can help overcome discrimination. Cf. id. at 261 (Stevens, J., dissenting) (arguing that the "program seeks to overcome barriers of prejudice between private parties - specifically, between general contractors and subcontractors"). However, such programs ought to be potentially limited by the amount of contracts that can be set aside in this fashion. In Adarand, it is unclear whether the 10% contract-bid advantage for minority businesses disadvantaged nonminority businesses too much.
358. See Karst, supra note 42, at 336-37. As a result, such programs do not contribute to the hardening of divisions along racial lines as extensive race-based quotas might. The reality of inherent cultural and racial biases in every person and the salutary effects of racial diversity have already been recognized in the jury venire cases, where the Supreme Court has prohibited the use of peremptory challenges to strike members of racial minorities from the jury. See Holland v. Illinois, 493 U.S. 474, 480-81 (1990); Batson v. Kentucky, 476 U.S. 79 (1986); see also Metro Broad., 497 U.S. at 583. Of course, companies, organizations, and educational institutions may institute programs that seek diversity of employees based on factors entirely unrelated to race or cultural group membership, such as skills or area of expertise. Although these programs are not diversity affirmative action programs of the type discussed here, there is still no reason why they should not be subject to generally applicable antidiscrimination jurisprudence.
359. Cf. infra text accompanying note 286 (observing that the Supreme Court has noted that abstract, generalized prejudice is too '"amorphous a basis for imposing a racially classified remedy'") (quoting Wygant, 476 U.S. at 276).
360. See supra notes 235-56.
361. See Adarand, 515 U.S. at 228 ("By requiring strict scrutiny of racial classifications, we require courts to make sure that a governmental classification based on race, which 'so seldom provide[s] a relevant basis for disparate treatment,' is legitimate, before permitting unequal treatment based on race to proceed.") (alteration in original) (quoting Fullilove v. Klutznick, 448 U.S. 448, 545 (1980) (Stevens, J., dissenting)). Such diversity affirmative action programs will hasten the day that "race will become a truly irrelevant, or at least insignificant, factor" for being an equal member of society. Id. at 229. There may, of course, be additional factors that need to be considered on a case-by-case basis. For a discussion of such issues, see Days, supra note 212, at 485.
362. See Lawrence, supra note 59 (advocating extending antidiscrimination laws to remedy subconscious racism). Integration is a different means of accomplishing the same goal.
363. In this respect, the case for congressional action is especially strong because Congress's Fourteenth Amendment enforcement powers "may at times also include the power to define situations which Congress determines threaten principles of equality and to adopt prophylactic rules to deal with those situations." City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490 (1989) (O'Connor, J., holding unclear) (emphasis in original); see also Katzenbach v. Morgan, 384 U.S. 641, 651 (1966) ("Correctly viewed, § 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment."). The scope of Congress's power to act under § 5 was not resolved in Adarand. See Adarand, 515 U.S. at 231.
364. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986); see also Croson, 488 U.S. at 499 (holding that an "amorphous claim that there has been past discrimination in a particular industry cannot justify the use of an unyielding racial quota").
365. Wygant, 476 U.S. at 276-77 (stating there must be "sufficient evidence to justify the conclusion that there has been prior discrimination"); see Metro Broad., Inc. v. FCC, 497 U.S. 547, 613-14 (1990) (O'Connor, J., dissenting), overruled by Adarand, 515 U.S. 200.
366. Particularized findings of past discrimination can also be viewed as satisfying the Court's need to state unequivocally that in some circumstances racial minorities continue to face particularized discrimination in the present so as to justify and legitimate drastic and specific race-based remedies. See Days, supra note 212, at 457-58; Sullivan, supra note 183, at 91-92. In that sense, proven past discrimination simply serves as a proxy for and evidence of present discrimination, as well as a means of verifying the existence of present effects of past discriminatory actions. See Croson, 488 U.S. at 490-92. Affirmative action programs are the means to the end of discrimination that would otherwise continue to exist due to the recalcitrance of those who have engaged previously in discrimination. See Local 28 of the Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 448-49 (1986). Requiring proof of specific discrimination when such programs are directed at discrimination that is inherently difficult or impossible to prove would be incongruous.
367. It is also in this respect that voting rights cases involving redistricting to improve the electoral strength of minorities are different in a significant character from the religious segregation question recently decided in Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994). Even though redistricting in many instances takes race into account and aggregates members of a particular racial group in particular voting districts, such redistricting is remedial in nature and conducted with the ultimate goal of integration and increased participation of racial minorities in our society. In contrast, the creation of political boundaries in Kiryas Joel was conducted not with that purpose, but rather with the opposite and specific purpose of permitting the Satmars to segregate and isolate themselves from the larger society.
368. Arguably, such government actions or programs sometimes do not actually provide the favored religious group with concrete financial benefits, see, e.g., Lynch v. Donnelly, 465 U.S. 668 (1984), unlike affirmative action programs that set aside public resources for the benefit of minority groups. But just as governmental endorsement of the superiority of one race provides an impermissible status benefit, with attendant beneficial economic consequences, to the favored racial group regardless of the expenditure of public funds, the same is true of symbolic governmental support for one religion. See id. at 701 (Brennan, J., dissenting).
369. 465 U.S. at 687-94 (O'Connor, J., concurring).
370. Id. at 691 (O'Connor, J., concurring).
371. Of course, whether in fact official observance of Christmas is sufficiently nonexclusionary in character to be constitutionally permissible is subject to disagreement.
372. Thus, "whether a government activity communicates endorsement of religion . . is, like the question whether racial or sex-based classifications communicate an invidious message, in large part a legal question to be answered on the basis of judicial interpretation of social facts." Lynch, 465 U.S. at 693-94 (O'Connor, J., concurring).
373. Id. at 688 (O'Connor, J., concurring).
374. Lee v. Weisman, 505 U.S. 577, 598 (1992). Thus, strict separation of religion and government, such as requiring government only to acknowledge the secular "would border on latent hostility toward religion ... to the exclusion and so to the detriment of the religious." Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 657 (1989) (Kennedy, J., concurring in the judgment in part and dissenting in part). A "wall of separation" approach is unnecessarily restrictive of permissible governmental actions, see id., because it would send a message of disapproval of the religious, see Lynch, 465 U.S. at 692 (O'Connor, J., concurring), in contrast to the irreligious.
375. 492 U.S. 573.
376. Id. at 635 (O'Connor, J., concurring in part and concurring in the judgment).
377. Interestingly, Justice O'Connor's endorsement jurisprudence specifically analyzes the message government support of religion provides to nonmembers of the favored group in coming to a determination whether such government support is permissible, see id. at 632-37 (O'Connor, J., concurring in part and concurring in the judgment), while such considerations are deemed irrelevant in the race context, see Metro Broad., Inc. v. FCC, 497 U.S. 547, 613 (1990) (O'Connor, J., dissenting), overruled by Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986).
378. Allegheny County, 492 U.S. at 602 (alteration in original) (quoting id. at 664 (Kennedy, J., concurring in the judgment in part and dissenting in part)). But see Epstein, supra note 84, at 2160-64 (arguing that official reference to religion as a means of acknowledging religious beliefs of citizens because of traditional practices is inappropriate). Of course, an endorsement problem cannot be solved by simply providing equivalent government support for other religious groups - after all, the Establishment Clause protects adherents of irreligion as well. See Wallace v. Jaffree, 472 U.S. 38, 52-53 (1985); see also Frederick Mark Gedicks, Motivation, Rationality, and Secular Purpose in Establishment Clause Review, 1985 ARIZ. ST. L.J. 677, 723-26.
379. See Lynch, 465 U.S. at 683.
380. See id. at 668 (upholding the constitutionality of displaying a nativity scene in a city park); Marsh v. Chambers, 463 U.S. 783, 792 (1983) (holding that unecumenical prayer by Christian minister before each state legislative session did not violate the Establishment Clause). While Marsh was analyzed as a long-standing historical practice, without regard to its endorsement implications, the same concerns apply. A more current instance involves the Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. §§ 2000bb to bb-4 (1994) (held unconstitutional by City of Boerne v. Flores, 117 S. Ct. 2157 (1997)). In Boerne, the Supreme Court found the RFRA to be an unconstitutional exercise of Congress's powers under § 5 of the Fourteenth Amendment and an impermissible attempt to change the Supreme Court's interpretation of the Free Exercise Clause in Smith. Accordingly, Congress could not require states under that power to accommodate religious free exercise. However, Boerne did not pass on the ability of governments to accommodate religious free exercise voluntarily. But even when applied only to federal government action, the RFRA, as a "superlegislative accommodation," might still present constitutional problems. Because the RFRA appears to elevate religious burdens over all other interests, it could be seen to send a message of endorsement of religion in general. An additional significant problem may be that the RFRA does not take into account the substantial burdens that government actions in compliance with the RFRA might impose on others. See Boerne, 117 S. Ct. at 2172 (Stevens, J., concurring). In contrast, more specific programs accommodating religion, such as aid to handicapped children in religious schools, see Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 14 (1993) (holding that the Establishment Clause does not prohibit a school district from providing a sign language interpreter for a deaf student attending a parochial school), or federal funding for core educational subjects in religious schools, see Agostini v. Felton, 117 S. Ct. 1997 (1997), appears not to cross that line.
381. 343 U.S. 306 (1952).
382. See United States v. Seeger, 380 U.S. 163 (1965); The Selective Draft Law Cases, 245 U.S. 366 (1918).
383. See Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987).
384. 512 U.S. 687 (1994).
385. Of course, that kind of restriction does not appear to exist in the context of constitutionally mandated accommodations. See Wisconsin v. Yoder, 406 U.S. 205 (1972). To the extent that the religious interest there is much stronger than those involved in legislative accommodations, and to the extent the government does not willingly use its power to exclude some from the larger community, that distinction may be justified.
386. Of course, irreligionists would qualify as well.
387. Just as in the race context, this inquiry does not provide a ready solution for discrimination in the government's decision of which specific religious faith to select for permitted governmental acknowledgment or special governmental benefits. See Kiryas Joel, 512 U.S. 687 (expressing concern about discrimination in conferral of government benefit). Nevertheless, considering past and present discrimination can significantly advance the inquiry.
388. See GORDON, supra note 6, at 235 ("Studies have pointed to the role of intimate equal-status contact between members of majority and minority groups in reducing prejudice.").
389. See generally Bill Ong Hing, Beyond the Rhetoric of Assimilation and Cultural Pluralism: Addressing the Tension of Separatism and Conflict in an Immigration-Driven Multiracial Society, 81 CAL. L. REV. 863 (1993) (stating that the core values of our nation are respect for the laws, liberty, equality, and republicanism); Karst, supra note 33, at 363.