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Date: Summer 2021
From: Harvard Journal of Law & Public Policy(Vol. 44, Issue 3)
Publisher: Harvard Society for Law and Public Policy, Inc.
Document Type: Article
Length: 11,243 words
Lexile Measure: 1830L

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The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. (1)

--Chief Justice John Marshall

Few words lie closer to the American heart than the affirmation that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, [and] that among these are Life, Liberty and the pursuit of Happiness." (2) Less commonly quoted is the corollary that immediately follows: "That to secure these rights, Governments are instituted among Men...." (3) One of the principal purposes of government is to vindicate the fundamental rights of its subjects. As Chief Justice John Marshall remarked in Marbury v. Madison, (4) "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." (5) Marbury's reasoning emphasized that "[f]or every right, there must be a judicial remedy." (6) Rights not given life by remedies become merely theoretical to the individuals asserting them.

The lack of an effective remedy can nullify even vital rights, such as those guaranteed under the Equal Protection Clause. (7) In weighing such discrimination cases, the Supreme Court has consistently maintained that courts may choose between two "effectively equivalent" remedies: "to 'level up' by extending [a] benefit to the excluded class ... or to 'level down'" by removing the benefit even from the included class. (8) In colloquial terms, these two options have been called "the nice remedy" and the "the mean remedy," respectively. (9) Scholars, commentators, and common sense agree that "leveling down is not always consistent with the meaning of equality" and that, in many cases, the choice to level up or down determines whether plaintiffs actually get relief. (10)

Yet despite occasional dicta to the contrary, the Supreme Court has not erred on the side of leveling up. (11) Consider the recent case of Patrick Henry Murphy, a Buddhist death row inmate in Texas. (12) Unlike the Christian inmates of the prison, Murphy was not allowed to have a religious adviser of his faith with him during his execution. But while the Supreme Court stayed Murphy's execution in 2019 due to the "denominational discrimination" evinced by the Texas policy, (13) it prescribed no particular remedy. (14) Rather than allow Buddhist inmates access to religious advisers of their faith, Texas chose to revoke the privilege from Christian inmates. (15) This level-down solution demonstrates how ineffective remedies can satisfy the letter of the Constitution while denying its spirit: despite a victory in the Supreme Court, Murphy is no better off.

This Note argues that where substantive, explicit constitutional rights guaranteed by the Free Exercise Clause have been violated alongside the Equal Protection Clause, the Constitution may require courts to favor a level-up approach. In other words, courts should presumptively apply level-up remedies in religious discrimination cases involving free exercise...

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Gale Document Number: GALE|A668279558