LEVEL-UP REMEDIES FOR RELIGIOUS DISCRIMINATION.

• Author: Gillespie, Mark C.

The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. (1)

--Chief Justice John Marshall

Few words lie closer to the American heart than the affirmation that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, [and] that among these are Life, Liberty and the pursuit of Happiness." (2) Less commonly quoted is the corollary that immediately follows: "That to secure these rights, Governments are instituted among Men...." (3) One of the principal purposes of government is to vindicate the fundamental rights of its subjects. As Chief Justice John Marshall remarked in Marbury v. Madison, (4) "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." (5) Marbury's reasoning emphasized that "[f]or every right, there must be a judicial remedy." (6) Rights not given life by remedies become merely theoretical to the individuals asserting them.

The lack of an effective remedy can nullify even vital rights, such as those guaranteed under the Equal Protection Clause. (7) In weighing such discrimination cases, the Supreme Court has consistently maintained that courts may choose between two "effectively equivalent" remedies: "to 'level up' by extending [a] benefit to the excluded class ... or to 'level down'" by removing the benefit even from the included class. (8) In colloquial terms, these two options have been called "the nice remedy" and the "the mean remedy," respectively. (9) Scholars, commentators, and common sense agree that "leveling down is not always consistent with the meaning of equality" and that, in many cases, the choice to level up or down determines whether plaintiffs actually get relief. (10)

Yet despite occasional dicta to the contrary, the Supreme Court has not erred on the side of leveling up. (11) Consider the recent case of Patrick Henry Murphy, a Buddhist death row inmate in Texas. (12) Unlike the Christian inmates of the prison, Murphy was not allowed to have a religious adviser of his faith with him during his execution. But while the Supreme Court stayed Murphy's execution in 2019 due to the "denominational discrimination" evinced by the Texas policy, (13) it prescribed no particular remedy. (14) Rather than allow Buddhist inmates access to religious advisers of their faith, Texas chose to revoke the privilege from Christian inmates. (15) This level-down solution demonstrates how ineffective remedies can satisfy the letter of the Constitution while denying its spirit: despite a victory in the Supreme Court, Murphy is no better off.

This Note argues that where substantive, explicit constitutional rights guaranteed by the Free Exercise Clause have been violated alongside the Equal Protection Clause, the Constitution may require courts to favor a level-up approach. In other words, courts should presumptively apply level-up remedies in religious discrimination cases involving free exercise violations. Part I examines the development of remedies for discrimination claims and sketches the contours of the Supreme Court's current position, which gives no legal preference to leveling either up or down. Part II proposes a presumptive level-up framework for approaching religious discrimination cases implicating free exercise violations. Part III applies this framework to recent cases (including Murphy's) and shows that leveling up can produce more equitable outcomes--a principle illustrated by the Supreme Court's recent ruling in Espinoza v. Montana Department of Revenue. (16)

1. A BRIEF HISTORY OF EQUAL PROTECTION REMEDIES

   Judicial remedies have become a vital tool for enforcing constitutional rights in equal protection cases. Courts attempting to fashion such remedies, however, receive little direction from the Supreme Court. While the Court has expressed a loose preference for level-up remedies, it has never committed itself to a clear rule or standard requiring them.

   1. The Role of Courts in Fashioning Remedies

      In the early Republic, the legislative branch assumed the primary responsibility for defining remedial mechanisms. The Constitution itself refers explicitly to only two remedies: (17) habeas corpus; (18) and the "just compensation" required by the Fifth Amendment. (19) The Framers expected that constitutional rights would be vindicated through legal structures that already existed (such as actions at common law or at equity). (20) They also believed that Congress had the power to create statutory remedies and causes of action to afford relief to victims deprived of their rights, including constitutional rights. (21) Nearly a century later, the Reconstruction Congress exercised this power by passing the Enforcement Act of 1871, (22) which imposed civil liability on state actors who deprived a person of "any rights, privileges, or immunities secured by the Constitution of the United States." (23) This cause of action has since been codified at 42 U.S.C. [section] 1983 (24) and is now perhaps "the most powerful offensive remedy" available to plaintiffs seeking redress for constitutional violations. (25)

      While Congress did not hesitate to create new remedies, courts were historically less eager to step forward. The early judicial role in fashioning remedies was comparatively limited, perhaps in part because of Marbury's assertion that some remedies were beyond the power of the Supreme Court to grant. (26) The Enforcement Act of 1871 included both a clause creating a cause of action for plaintiffs and a clause explicitly creating federal jurisdiction to hear such claims. The inclusion of both clauses suggests that, as late as the mid-nineteenth century, Congress may have been unsure about the role of the courts in remedying constitutional injuries. (27) But as suits based on constitutional violations increased, courts began to take a more active role in shaping remedial mechanisms. By the midtwentieth century, the Supreme Court could confidently instruct federal courts to use "equitable principles ... characterized by a practical flexibility in shaping ... remedies" to counteract public school segregation. (28) And in Bivens v. Six Unknown Named Agents, (29) the assertive Warren Court boldly declared that "federal courts may use any available remedy to make good the wrong done" when vital constitutional rights are at stake, even if such a remedy is outside the scope of any current statutory scheme. (30) In recent years, a more cautious Court has backed away from the leading role it envisioned for itself in Bivens. (31) Nevertheless, the judiciary continues to play an important role in crafting remedies--a role that Congress recognizes and occasionally modifies through legislation. (32)

   2. "Two Remedial Alternatives:" Judicial Remedies for Equal Protection Violations

      As the judicial power to create remedies developed, the Supreme Court repeatedly grappled with the difficulties inherent in designing remedies that effectively vindicate equal protection rights. These difficulties have engendered a jurisprudence of inconsistency: while the Court has repeatedly spoken to the importance of ending discrimination, its rulings have not always provided effective relief.

      One of the first major cases illustrating the challenge of fashioning antidiscrimination remedies was Cumming v. Richmond County Board of Education. (33) Decided in 1899, Cumming involved an attempt to appropriate tax money for the establishment of a high school exclusively for white children. (34) White children thus received a taxsupported educational opportunity that African-American children did not. But in considering possible remedies, the Cumming Court faced a difficult dilemma. If it decided that African-American taxpayers had suffered discrimination, it would have only two options: level up (by requiring the Board of Education to establish a similar school for African-American children); or level down (by closing the existing school for white children). Neither option appealed to the Court. Leveling down by taking existing educational opportunities away from children seemed morally repugnant and politically disastrous. But a level-up remedy would be similarly unpopular in the Jim Crow South and economically impractical. (35)

      Faced with this choice of evils, the Court ducked the question by refusing to find a constitutional violation under the Equal Protection Clause altogether. (36) The shadow of Plessy v. Ferguson, (37) decided three years previously, loomed large over Cumming. Perhaps it is unsurprising that the Supreme Court was unwilling to find racial discrimination in public education so soon after its infamous decision enshrining that very discrimination. (38) But Cumming is notable for its logic, not its outcome. Rather than a principled constitutional basis for its decision, the Cumming Court offered only a frank acknowledgment that it did not feel comfortable with any available remedy:

      The substantial relief asked is an injunction that would either impair the efficiency of the high school provided for white children or compel the Board to close it. But if that were done, the result would only be to take from white children educational privileges enjoyed by them, without giving to colored children additional opportunities for the education furnished in high schools. The colored school children of the county would not be advanced in the matter of their education by a decree compelling the defendant Board to cease giving support to a high school for white children. (39) The Court reasoned that granting relief would necessarily curtail available educational opportunities, whether that meant closing the segregated white high school or reallocating educational funds and thus denying children other...