I have argued on a number of occasions, most recently here, that anyone who believes racial preferences are consistent with the principle and practice of non-discrimination must also believe that religious preferences are similarly acceptable. Indeed, if “diversity,” which is said to justify racial preferences, has anything at all to do with a diversity of values and viewpoints, religious preferences might well be more necessary in higher education than racial preferences.
That said (again), let me call your attention to an excellent short discussion of religious freedom by Eugene Volokh. I encourage you to read the whole post, but the comment that particularly interests me is the following:
I generally support an equal treatment view of the Religion Clauses; the Establishment Clause generally bars discrimination in favor of religion, and the Free Exercise Clause generally bars discrimination against it.
Religious preferences would thus seem to be a twofer: they would violate the Establishment Clause by discriminating in favor of members of the preferred religion(s); and they would violate the Free Exercise Clause by discriminating against members of the un-preferred religion(s).
With all that going for them, how is it that they haven’t been taken up by preferentialists already?
Actually, they’d be a threefer, as you’d have the same equal protection problems under the 14th Amendment, as well.
Of the three, the Establishment Clause seems to be the strictest, and the main reason why religious preferences wouldn’t fly even where racial preferences would. Affirmative action for Muslims may not violate the equal protection rights of Christians, and probably fall short of denying Christians the right to exercise their religion freely (though it would give them a perverse incentive to convert), but it clearly would “respect” an establishment of religion, and therefore be unconstitutional.
Xrlq: You’re of course right about the threefer because of the 14th, but I gave that one away because the Court has pretty much already given it away for us (holding that the 14th does not bar racial preferences for “diversity”).
As for the Establishment Clause being a higher bar for religious preferences, you may well be right there as well, although I’m not sure why a Court that can see no 14th/equal protection problem with racial preference should see any problem with a “diversity”-justified Muslim/Methodist/Whatever preference.
I wonder, how much of this, in the guise of “ethnic” diversity, has already slipped under the wire?
The difference, as I see it, is in the wording of the amendments themselves. The equal protection clause does not state outright that Congress can make no laws respecting a race, a religion, or anything else for that matter. The notion that it should be read to prohibit all laws that attach any consequences to one’s race is a defensible view, but it’s by no means the only one. Another is that it bans only “invidious” discrimination, while allowing for racial discrimination for “good” reasons (which may not really be all that good, but are non-invidious in nature, and therefore outside the ambit of the 14th Amendment).
By contrast, a flat rule that “Congress shall make no law respecting an establishment of religion” reads as more of a flat ban on any law attaching any consequences to religion whatsoever, be it good, bad invidious, non-invidious, whatever.