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81 Cornell L. Rev. 1049 (1995-1996)
Equality as the Primary Constitutional Value: The Case for Applying Employment Discrimination Laws to Religion

handle is hein.journals/clqv81 and id is 1106 raw text is: EQUALITY AS THE PRIMARY CONSTITUTIONAL VALUE: THE CASE FOR APPLYING EMPLOYMENT DISCRIMINATION LAWS TO RELIGION Jane Ruthefordt INTRODUCTION ................................................. 1050 I. THE ROLE OF EQUALITY IN THE CONSTITUTIONAL SCHEME ................................................. 1060 A. The Historical Roots of Equality as a Unifying National Value ..................................... 1060 1. The Founding Period ............................. 1060 2. Reconstruction ................................... 1064 3. Universal Suffrage ................................ 1069 B. Equality as a Source of Legitimacy .................. 1070 C. Equality as an Instrument to Protect Other Constitutional Values ............................... 1074 II. THE CONSTITUTIONAL CONFLICT BETWEEN THE RIGHTS OF THE RELIGIOUS EMPLOYEE AND THE RELIGIOUS EMPLOYER. 1076 A. State Action: The Statutory and Common-Law Imprimatur on Discrimination ...................... 1077 B. The Effect of Employment Discrimination on the Constitutional Rights of Religious Employees ....... 1079 1. Employees' Equal Protection Rights ................. 1080 2. Employees' Free Exercise of Religion ................. 1085 3. Employees' Right to Participate and Speak ........... 1091 C. The Countervailing Interests of Religious Employers as Justifications for Unlawful Discrimination ........ 1096 1. The Public-Private Dichotomy as a Justification for Discrimination ................................... 1096 t A.B., University of Chicago; J.D., University of Michigan; Professor, DePaul Univer- sity College of Law. The faculties of both the Duke University Law School and the Indiana University School of Law-Bloomington gave me valuable input on earlier drafts of this pa- per at faculty workshops. I also appreciate the comments and support of the Chicago Women Law Professors and Friends. Similarly, Douglas Laycock, Martha Minow, Carol Sanger, Tim O'Neill, Michelle Oberman, Maria O'Brien Hylton, Calvin Sharpe, and Mark Weber were generous with their helpful comments. Finally, I would like to thank my inval- uable research assistants, Kelly Downs, Jodi Golant, Suzanne Loose, Jacqui Koth, and Tim McCaffrey. This project was funded by the DePaul University College of Law research fund. 1049

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