V. Equal Protection Claims

• Library: Litigating Religious Land Use Cases (ABA) (2016 Ed.)

V. Equal Protection Claims

The Equal Protection Clause of the 14th Amendment provides that "[n]o State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws."²⁷³ Ratified in the years following the Civil War, the Equal Protection Clause had generally not been understood to restrain discriminatory state and local legal classifications aside from those pertaining to race and national origin. While suspect classifications would be subject to strict scrutiny, others would have only to satisfy a very low-bar "reasonableness" standard.

Today, however, courts understand equal protection more broadly as a "direction that all persons similarly situated should be treated alike."²⁷⁴ The Supreme Court reached that understanding as it broadened the application of strict scrutiny under the Equal Protection Clause, most notably in the mid-20th century. It now applies to classifications that discriminate against "suspect" classes, which can include politically powerless, unpopular, or historically marginalized groups. The Court further extended strict scrutiny to classifications that burdened particular "fundamental" rights or interests. For purposes of equal protection, religious exercise has been recognized as both "fundamental"²⁷⁵ and "an inherently suspect distinction."²⁷⁶ Courts thus apply strict scrutiny to laws that make classifications on the basis of religion.

Not all laws discriminate by their letter, rendering important the distinction between as-applied and facial challenges. A facial challenge claims that a law on its face violates the Equal Protection Clause. For example, a litigant may facially challenge a zoning ordinance specifically excluding churches altogether from a business district. In contrast, an as-applied challenge addresses the application of law, implying that government effectively made an improper classification by means of enforcement. An example could be a zoning board's denial of a religious land use permit application after having approved a similar secular land use recently. It is generally more difficult to prevail on a facial challenge because, under the Supreme Court's standards, "the challenger must establish that no set of circumstances exists under which the act would be valid."²⁷⁷ In contradistinction, an as-applied challenge need only show that a particular application of law alone is unconstitutional.

The requirement to make a showing of discriminatory purpose is another essential ingredient for many forms of facial equal protection claims. Again, a neutral law may simply have no rational connection to a legitimate government interest and fail the reasonableness test. But for a court to apply strict scrutiny to a neutral law, it must be convinced that government intended for the law to have a discriminatory effect or be applied discriminatorily. This is a high bar, though the Supreme Court does not require plaintiffs to show that the discrimination was the "sole[]" motivating factor behind the law.²⁷⁸ As discussed in the free exercise claims section, courts will look for alleged discriminatory purpose in equal protection and free exercise claims within the same broad array of relevant "direct and circumstantial evidence"²⁷⁹ Plaintiffs will then have to make a sufficient showing that discriminatory animus was afoot.

Overlap delineated between free exercise and equal protection jurisprudence may make a claim pursuant to the Equal Protection Clause seem superfluous. In many cases it would be, which in part explains why religious discrimination claims often exclude equal protection arguments. But it is feasible that a court could find an equal protection violation while simultaneously dismissing a free exercise claim. As discussed, discriminatory targeting will trigger strict scrutiny and the absence of a showing of discrimination will subject a law to rational basis review. But treating one religious group differently from another can raise issues unique to equal protection. Where a religious exercise claim may fail because a plaintiff cannot demonstrate intentional discrimination, an equal protection claim may succeed if one religious group is treated less favorably than a similarly situated religious group without reasonable justification for the differential treatment, thereby failing even rational basis review.²⁸⁰

In other words, a claim under the Free Exercise Clause alone may neither sufficiently highlight the irrationality of certain disparate treatment nor requite government to address it.²⁸¹ This situation is not necessarily unlikely to arise in the land use context given that administrators must assess many different religious requests and may not be able to approve them all, even if some could be construed as similarly situated.²⁸² It would also not be caught by RLUIPA's equal terms dragnet, thought to be the statutory counterpart to equal protection, because that provision extends only to unequal treatment compared to "a nonreligious assembly or institution."²⁸³

The Supreme Court has established the following standards for determining the validity of state legislation such as zoning ordinances or other land use regulations that it would apply under the Equal Protection Clause:

Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect classifications such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classifications challenged be rationally related to a legitimate state interest.²⁸⁴

If the legislative classification negatively affects such a suspect class, then courts may uphold the classification only if it is "precisely tailored to...