The religious difference: equal protection and the accommodation of (non)-religion.

• Author: Kuhn, Jonathan P.

[I]t is crucial to realize that the free exercise clause does not protect all deeply held beliefs, however "ultimate" their ends or all-consuming their means. An individual or group may adhere to and profess certain political, economic, or social doctrines, perhaps quite passionately. The first amendment, though, has not been construed, at least as yet, to shelter strongly held ideologies of such a nature, however all-encompassing their scope.... "[T]o have the protection of the Religion Clauses, the claims must be rooted in religious belief." (1)

The First Amendment provides for specific rules that apply to "religion" without defining the term. (2) This definition seems essential; the prohibition on establishment and the guarantee of free exercise apply by the law's terms to religion, (3) and not to anything that is not religion, (4) Although Judge Adams in the epigraph seems to easily explain the distinction as one between mere "strongly held ideologies" on the one hand and "religion" on the other, it is not clear that such a distinction is actually possible. (5) Black's Law Dictionary, for example, qualifies every factor that it includes in its definition of religion, leaving nothing concrete in the concept. (6) Black's must use such a malleable definition because even among core religions--those beliefs that are unambiguously religious (7)--there is significant diversity. (8) When one expands the term beyond that core, the definition may become even murkier: some scholars have argued that the title of religion should extend to fitness clubs, television shows, or even sports fandoms. (9) Despite Judge Adams's conviction, it simply does not appear there is any essence of religion, with which a belief becomes religious and without which a belief cannot be religious. (10)

This difficulty ultimately comes from a seemingly insurmountable problem: that "[r]eligion must be special, and yet it is not." (11) The First Amendment and various statutes posit religion as meriting special treatment, but there does not seem to be any satisfying normative reason for that treatment. (12) One response is to completely reimagine religious freedom and reduce the concept to another theory which does not distinguish between religious and non-religious motivations, such as the theory of "Equal Liberty" proposed by Professors Eisgruber and Sager. (13) Though the logic of these positions is in conflict with the plain text of the First Amendment, (14) this view has become standard, if not even "ho-hum," among legal theorists. (15)

Despite the banality of the position among the legal literati, the idea that religion does not have special significance has not yet directly made its way into constitutional jurisprudence. (16) Certainly, religious liberty remains "the first freedom" in our Bill of Rights, at least literally, if not metaphorically. (17) That freedom does not stop at the Constitution: a 1992 student Note estimated that over two thousand statutes at the state and federal level included religious exemptions. (18) Repeating that student's methodology today shows a slight uptick in such statutory exemptions to more than 2,200. (19) Chief among those statutes are the Religious Freedom Restoration Act ("RFRA"), (20) the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), (21) and their state-level equivalents, (22) all of which provide religion with generalized special treatment, (23) while making only passing attempts at definition. (24)

Recently the District Court for the District of Columbia and the Seventh Circuit have recognized and loosened the tension between religion's potentially undeserved special status and the existing statutory frameworks that seek to privilege it, all while preserving these statutes in their entirety. (25) In March for Life v. Burwell, (26) the district court found that equal protection required that a non-religious organization opposed to abortion have access to an existing exemption for religious institutions also opposed to abortion. (27) In its decision, the court relied on a (2014) case from the Seventh Circuit, Center for Inquiry, Inc. v. Marion Circuit Court Clerk, (28) which enjoined the state of Indiana from enforcing a law that prohibited a Secular Humanist group from solemnizing marriages, but granted a broad exemption for "[a] member of the clergy of a religious organization." (29) Both cases centered on the understanding that "religiosity 'cannot be a complete answer' where ... two groups with a shared attribute are similarly situated 'in everything except a belief in [a] deity.'" (30) Thus, the definition of religion and the claimant's (31) place within that definition were irrelevant to their entitlement to the exemption. Simply put: the courts held that, for the purposes of these particular laws, religion was not particularly special.

Part I of this Note will summarize the facts and holdings of March for Life and Center for Inquiry in order to provide a starting point for analyzing the issue and the solution provided by the two courts. (32) Part II will explore the modern federal courts' approach to identifying what makes religion distinct from non-religion and some flaws with that approach that are alleviated by the equal protection method of March for Life and Center for Inquiry. Part III will look towards justifications for religion's special treatment and focus on one possibility that is consistent with the equal protection method by not requiring religion to actually be special in order to justify the privileged treatment it currently enjoys in the law. Finally, Part IV will argue that application of religious exemption statutes to cover claims of non-religious sincerely held beliefs, as in March for Life and Center for Inquiry, is consistent with existing Supreme Court precedent and that such a framework can support rather than detract from the Constitution's special treatment of religion.

1. THE CASES

   1. March for Life

      March for Life is a non-profit, pro-life organization based in our nation's capital that seeks to overturn Roe v. Wade (33) and "defend the unalienable and paramount right to life." (34) What it is not, however, is a religious organization. (35) Despite being non-religious, one would certainly have difficulty doubting that March for Life and its employees (36) possess a sincere belief regarding the immorality of abortion--a

      belief shared by many religious people in America. (37)

      There exists a process that accommodates employers with similar beliefs regarding abortion who offer health insurance to their employees, but who do not wish to provide the contraceptive coverage legally mandated by the Affordable Care Act (38)--an accommodation that raises continuing controversy before the Supreme Court. (39) Per the regulations, this exemption is only available to a religious employer or an organization that "opposes providing coverage ... on account of religious objections." (40) The Department of Health and Human Services (HHS) provided two principal justifications for this accommodation to the district court (41): first, to "respect the religious interests" of the claimants and second, because it only minimally undermined the government's interest in providing contraceptives to women who desire them. (42)

      Because March for Life could not claim a religious exemption under the regulations, being a non-religious institution, it instead sought exemption under the Equal Protection Clause of the Fifth Amendment. (43) The district court noted that the "sin quo non [sic] of equal protection is that the government must 'not treat similarly situated individuals differently without a rational basis' for doing so." (44) Even under this rational basis test, "the most deferential of lenses," this regulation failed. (45) The court framed the question precisely as whether "March for Life is similarly situated with regard to the precise attribute selected for accommodation," as opposed to being "'generally' similar" to a religious objector. (46) Seen through this tightly-focused lens, March for Life was not only similarly situated, it was identically situated: the two reasons HHS had provided for accommodation applied equally well, if not better to March for Life. (47) The court found that the regulation was in fact not targeted toward religion, despite the phrasing of the exemption, but only to a "moral philosophy" that is merely "common among religiously-affiliated employers." (48) Because this moral philosophy was common to March for Life as well, the exemption had to be extended to it. (49) Since the decision in August 2015, HHS has filed an appeal with the Court of Appeals for the D.C. Circuit. (50)

   2. Center for Inquiry

      The test used for the equal protection claim in March for Life, with its laser-focus on the claimant's similarity relative to the interest accommodated, originated in a Seventh Circuit case, Center for Inquiry, Inc. v. Marion Circuit Court Clerk f In Center for Inquiry, the Center, along with its leader and "certified secular celebrant," (52) Reba Boyd Wooden, brought suit under section 1983 (53) to enjoin the enforcement of an Indiana law that prohibits the solemnization of a marriage by an individual not on a list of exceptions. (54) The exceptions include judges, mayors, and clerks of the state as well as a general exception for a "member of the clergy of a religious organization ... such as a minister of the gospel, a priest, a bishop, an archbishop, or a rabbi." (55) Other exempt individuals include practitioners of specifically identified religions that would not fit into that broad exemption, including Quakers, German Baptists, Baha'is, Mormons, and Muslims. (56) The court was quick to note that this list was not all-inclusive, even of the plainly religious. (57)

      The Center for Inquiry is a Secular Humanist organization, and its members expressly refuse the religious label. (58) They do so despite the fact that such recognition...