Intentional Discrimination in Establishment Clause Jurisprudence

Abstract

In Town of Greece v. Galloway, the Supreme Court upheld a legislative prayer practice with overwhelmingly Christian prayers in part because the Court concluded that the exclusion of all other religions was unintentional. This requirement — that a religiously disparate impact must be intentional before it amounts to an establishment violation — is new for Establishment Clause doctrine. An intent requirement, however, is not new for equal protection or free exercise claims. This Essay explores the increased symmetry between the Establishment Clause, the Equal Protection Clause, and the Free Exercise Clause. It argues that many of the critiques of the intentional discrimination standard made in the equal protection context apply in the establishment context. It also argues that free exercise and establishment jurisprudence still differ substantially despite their superficial symmetry.

Keywords: establishment, equal protection, free exercise, intentional discrimination, prayers, Greece, Galloway, unconscious discrimination, indifference