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The Missing Fourteenth Amendment in Trinity Lutheran
Chris Green

It is striking that in Monday's Trinity Lutheran v. Comer, the Court and the concurrences failed even to mention the Amendment at stake: the Fourteenth Amendment, not the First. The Court left out even a nod to Cantwell v. Connecticut, which held that the Fourteenth Amendment's Due Process Clause incorporated the Free Exercise Clause against states, though Justice Sotomayor's dissent mentioned Cantwell as part of another argument in a footnote. Not even Justice Thomas, who wrote separately in Trinity Lutheran, and who just last week noted the possibility that the Privileges or Immunities Clause might incorporate against states a refined version of the takings principle expressed in the Fifth Amendment (see also here), gave any attention to the Fourteenth Amendment's original meaning.

What makes this failure even more striking is that despite the Court's lack of direct concern with the original meaning, its closing appeal to history fits hand-in-glove with my understanding of the Privileges or Immunities Clause. The Court quoted H. M. Breckenridge's early-nineteenth-century condemnation of Jewish citizens' "odious exclusion from any of the benefits common to the rest of my fellow-citizens," and earlier in the opinion noted the reference in Lyng v. Northwest Indian Cemetery to "denying religious adherents an equal share of the rights, benefits, and privileges enjoyed by other citizens." Whatever we make of the meaning of the "free exercise of religion" in 1791, the prohibition of such exclusions is the central meaning, as I read the evidence, of the Privileges or Immunities Clause. Much more could be said on the historical application of equal-citizenship principles to religion: George Edmunds's references to religious discrimination under the Privileges or Immunities Clause prior to the Civil Rights Act of 1875, James Madison's proposal in 1789 that "[t]he civil rights of none shall be abridged on account of religious belief or worship," or Madison's 1785 protest against "degrad[ing] from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority."

Rather than a dubious Tinker-to-Evers-to-Chance daisy chain from Fourteenth Amendment Due Process to First Amendment Free Exercise to equal citizenship, the original meaning expressed by the Privileges or Immunities Clause offers a much simpler argument. To give similarly-situated fellow citizens of the United States different rights is just what it means to abridge the privileges or immunities of such citizens. One hopes that the briefing in Masterpiece Cakeshop v. Colorado Civil Rights Commission--or even the opinions!--will at least touch on the Privileges or Immunities Clause issues neglected in Trinity Lutheran.