THE IMPOSSIBILITY OF RELIGIOUS EQUALITY

The Supreme Court has recently adopted a new rule of religious equality: Laws unconstitutionally discriminate against religion when they deny religious exemptions but provide secular exemptions that undermine the law's interests to the same degree as would a religious exemption. All the Justices and a cadre of scholars have agreed in principle with this approach to religious equality. This Essay argues that this new rule of religious equality is inherently unworkable, in part because it turns on treating that which is religious the same as its secular "comparators." But religion is not comparable to anything-neither in terms of its essence nor its value. The current doctrine assumes that "religion" is always at least as valuable as all that is "secular"-that is, that religion qua religion is as valuable as, and thus must always be treated as well as, all that is simply "not religion." This assumption lacks both conceptual coherence and a normative basis. It also renders religious "equality" a contradiction in terms as it establishes not religious equality, but religious superiority.