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Very minor question about a potentially important
footnote point in Davey. The Court holds in footnote 3 that where
the Free Exercise Clause is not violated, religious discrimination is subject
only to rational-basis scrutiny under the Equal Protection Clause -- citing
Johnson v. Robison, which suggested the same thing. Is this
correct? Is there a theory of the 14th Amendment that would suggest
otherwise?
The Court has often indicated that religious
discrimination is subject to strict scrutiny under the EPC -- without ever, as
far as I know, issuing a holding that depended on such a conclusion.
But cf. Fowler, 345 U.S. at 527-28 (Frankfurter, J., concurring).
Of course, many of us have been wary of this equal protection argument because
to take it seriously would be to call into question religious
accommodations. But assume for the moment that religious discrimination
is generally subject to strict scrutiny under the EPC. If so, is
there any good reason why the scrutiny should diminish in the absence of a Free
Exercise violation? In other words, should there ever be a case in which
the Equal Protection Clause prohibits a form of religious discrimination that
the FEC permits?
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