Thou Shalt Use the Equal Protection Clause for Religion Cases (Not Just the Establishment Clause)
Susan Gellman and Susan Looper-Friedman, 10 U. Pa. J. Const. L. 665 (2008)
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Even if no change comes at all, the authors propose another approach to be used in a common subset of Establishment Clause cases: those in which the government is engaging in religious expression. Familiar examples include government Christmas displays, prayers at government-sponsored events, government adoption of religious mottoes, giant crosses on public property, and, most recently in the public consciousness, Ten Commandments displays at government buildings. In these cases, the problem is not so much that people feel religiously coerced or proselytized by the government, but that non-Christians are made to feel that they are outsiders, almost second-class citizens, and not equally American. The problem is an equality problem; shouldn’t the solution be an equality solution? Fortunately, there is such a solution, and we have had it all along: the Fourteenth Amendment Equal Protection Clause.
