Also known as: facial discrimination · facially discriminatory · facially discriminate
Written by attorneys — see sources below.
A law or regulation that on its face distinguishes between persons or entities based on a characteristic that triggers heightened scrutiny under the Constitution. The distinction appears explicitly in the text of the measure rather than arising only from its effects or application.
Frontier Capital operates a bait shop near the state line and seeks to import live baitfish from out of state. The state enacts a statute that expressly prohibits importation of all live baitfish from other states while allowing in-state trapping. Frontier Capital sues, claiming the statute facially discriminates against interstate commerce.
Felix Franco applies for a state scholarship to pursue a theology degree at a religious college. The statute creating the scholarship program expressly bars use of funds for any devotional theology degree. Franco sues, alleging the exclusion facially discriminates against religious exercise.
The State of Washington established the Promise Scholarship Program in 1999 to assist academically gifted students with postsecondary education expenses. The scholarships are funded through the State's general fund and vary in amount each year, such as $1,125 for the 1999-2000 academic year and $1,542 for 2000-2001. To qualify, a student must graduate from a Washington high school in the top 15 percent of the class or achieve high standardized test scores, have family income less than 135 percent of the state median, and enroll at least half time in an eligible postsecondary institution in the state. The program bars students from using the scholarship to pursue a degree in devotional theology, as required by the Washington Constitution. Eligible institutions include accredited private colleges, including religiously affiliated ones, and the institution certifies the student's enrollment and that the student is not pursuing a devotional theology degree. The State does not define the term but interprets it to cover degrees devotional in nature or designed to induce religious faith. Joshua Davey received a Promise Scholarship and enrolled at Northwest College, a private Christian college affiliated with the Assemblies of God denomination. He planned to pursue a double major in pastoral ministries and business management, a course of study that includes a devotional theology component. After being informed he could not receive the scholarship while pursuing that major, Davey refused to sign a certification form and did not receive the funds. Davey sued state officials in the United States District Court for the Western District of Washington under 42 U.S.C. § 1983, alleging violations of the Free Exercise, Establishment, Free Speech, and Equal Protection Clauses. The District Court granted summary judgment to the defendants. The Ninth Circuit reversed, and the Supreme Court granted certiorari to review the case.
View caseTrinity Lutheran Church applies for a state grant to resurface its playground with recycled tires. The state program awards grants to nonprofit organizations but expressly excludes churches and other religious entities. The church sues, claiming the exclusion facially discriminates on the basis of religious status.
The Trinity Lutheran Church Child Learning Center is a preschool and daycare center open year-round in Boone County, Missouri. It was established as a nonprofit in 1980. The Center merged with Trinity Lutheran Church in 1985 and operates on church property. It admits students of any religion with an enrollment of about ninety children ages two to five. In 2012 the Center applied to Missouri’s Scrap Tire Program. The program is run by the Department of Natural Resources. It offers competitive reimbursement grants to qualifying nonprofits for installing playground surfaces made from recycled tires. The Center sought funds to replace its coarse pea gravel surface with a pour-in-place rubber surface. The Center disclosed in its application that it was a ministry of the Church whose mission included allowing a child to grow spiritually. The Center ranked fifth among forty-four applicants. The Department maintained a strict policy of denying grants to any applicant owned or controlled by a church, sect, or other religious entity. The Department rejected the application in a letter explaining that Article I, Section 7 of the Missouri Constitution barred providing financial assistance directly to a church. The Department ultimately awarded fourteen grants that year. Trinity Lutheran Church sued the Director of the Department in federal district court. It alleged that the denial of the grant solely because of the applicant’s religious status violated the Free Exercise Clause of the First Amendment. Trinity Lutheran sought declaratory and injunctive relief. The district court granted the Department’s motion to dismiss. It likened the case to Locke v. Davey. The court held that the Free Exercise Clause did not require the State to make funds available under the Scrap Tire Program to religious institutions. A divided panel of the Eighth Circuit affirmed. The court concluded that the State could rely on an applicant’s religious status to deny the application even though awarding the grant would not violate the federal Establishment Clause. Judge Gruender dissented on the ground that Locke did not leave states with unfettered discretion to exclude the religious from generally available public benefits. Rehearing en banc was denied by an equally divided court. The Supreme Court granted certiorari sub nom. Trinity Lutheran Church of Columbia, Inc. v. Pauley.
View caseThe Church of the Lukumi Babalu Aye plans a ritual that includes animal sacrifice. The city enacts an ordinance that expressly prohibits ritual animal sacrifice while permitting other forms of animal killing. The church sues, alleging the ordinance facially discriminates against its religious practices.
In April 1987 the Church of the Lukumi Babalu Aye, Inc., a not-for-profit corporation organized under Florida law in 1973 whose president is Ernesto Pichardo, leased land in Hialeah, Florida, and announced plans to build a house of worship, school, cultural center, and museum at which members would practice Santeria. Santeria originated in nineteenth-century Cuba as a fusion of Yoruba traditions and Roman Catholicism. It centers on animal sacrifice performed by cutting the carotid arteries, after which the animals are usually cooked and eaten except in healing and death rituals. The announcement prompted the Hialeah City Council to convene an emergency public session on June 9, 1987. At that session residents and council members voiced strong opposition to Santeria practices. The council then adopted Resolution 87-66 declaring opposition to religious acts inconsistent with public morals, peace, or safety and passed Ordinance 87-40 incorporating Florida's animal-cruelty statute that criminalizes unnecessary or cruel killing of animals. After the Florida attorney general issued an opinion that ritual animal sacrifice other than for food consumption violated state law, the council in August 1987 adopted Resolution 87-90 opposing ritual animal sacrifice. In September 1987 the council enacted three further ordinances. Ordinance 87-52 barred possession of animals with intent to use them for ritual sacrifice except by licensed food establishments. Ordinance 87-71 directly prohibited any person from sacrificing an animal within city limits. Ordinance 87-72 restricted slaughter of animals to properly zoned slaughterhouse premises while exempting small-scale commercial hog and cattle operations. The Church and Pichardo filed suit against the city and its officials in the United States District Court for the Southern District of Florida under 42 U.S.C. § 1983. They alleged that the ordinances violated their rights under the Free Exercise Clause. After granting summary judgment to the individual defendants on immunity grounds, the district court conducted a nine-day bench trial on the remaining claims and entered judgment for the city. The Court of Appeals for the Eleventh Circuit affirmed in a one-paragraph per curiam opinion. The Supreme Court granted certiorari.
View caseA federally funded family planning clinic operated by Frederick Ferguson wishes to provide abortion counseling. Federal regulations expressly prohibit the use of funds for any program that provides abortion counseling or referrals. The clinic sues, claiming the regulations facially discriminate against speech advocating abortion.
In 1970, Congress enacted Title X of the Public Health Service Act, 42 U.S.C. §§ 300–300a–6, authorizing the Secretary of Health and Human Services to make grants to public or nonprofit private entities for the establishment and operation of voluntary family planning projects offering a broad range of acceptable and effective family planning methods and services. After eighteen years of administration, the Secretary in 1988 promulgated new regulations that prohibit Title X projects from engaging in counseling concerning, referrals for, or activities advocating abortion as a method of family planning. The regulations also require such projects to maintain physical and financial separation from any abortion activities. They further forbid the use of project funds for abortion-related activities even if separately funded. Petitioners, who are Title X grantees and physicians who supervise Title X funds suing on behalf of themselves and their patients, filed two separate actions in federal district court. The actions were later consolidated. Petitioners challenged the facial validity of the regulations and sought declaratory and injunctive relief before the regulations had been applied. The district court rejected petitioners' statutory and constitutional challenges and granted summary judgment in favor of the Secretary. The Court of Appeals for the Second Circuit affirmed. The Supreme Court granted certiorari to resolve a split among the courts of appeals.
View caseForrest Falconer, a state employee, seeks leave to care for his newborn under a state family leave statute. The statute expressly grants leave only to women and not to men. Falconer sues, alleging the statute facially discriminates on the basis of sex in violation of equal protection.
William Hibbs worked for the Nevada Department of Human Resources Welfare Division. In April and May 1997, Hibbs sought leave under the FMLA to care for his ailing wife who was recovering from a car accident and neck surgery. The Department granted his request for the full 12 weeks of FMLA leave and authorized him to use the leave intermittently as needed between May and December 1997. Hibbs used the leave until August 5, 1997. In October 1997, the Department informed Hibbs that he had exhausted his FMLA leave, that no further leave would be granted, and that he must report to work by November 12, 1997. Hibbs failed to return to work by that date and was terminated. Hibbs sued the Nevada Department of Human Resources and two of its officers in the United States District Court seeking damages and injunctive and declaratory relief for violations of the FMLA. The District Court awarded summary judgment to the defendants on the grounds that the FMLA claim was barred by the Eleventh Amendment. Hibbs appealed and the United States intervened to defend the validity of the FMLA's application to the States. The Ninth Circuit reversed the District Court's judgment. When it enacted the FMLA, Congress considered evidence including a 1990 Bureau of Labor Statistics survey showing that 37 percent of surveyed private-sector employees were covered by maternity leave policies while only 18 percent were covered by paternity leave policies. Congress also heard testimony that parental leave for fathers is rare and that men receive discriminatory treatment in requests for such leave. A 50-state survey demonstrated that the proportion and construction of leave policies available to public sector employees differs little from those offered private sector employees. Many States offered women extended maternity leave that far exceeded the typical period of physical disability due to pregnancy and childbirth but very few States granted men a parallel benefit. The Supreme Court granted certiorari to resolve a split among the Courts of Appeals on the question whether an individual may sue a State for money damages in federal court for violation of the FMLA's family-care provision.
View caseA law is facially discriminatory when its text explicitly draws a distinction based on a suspect or prohibited criterion, such as out-of-state origin or religious status. Courts examine the language of the statute itself rather than its practical impact alone.
Once a law is shown to facially discriminate against interstate commerce, it is virtually per se invalid and the state must prove a legitimate local purpose that cannot be served by reasonable nondiscriminatory alternatives.
A law that facially discriminates against religion is subject to the most rigorous scrutiny and ordinarily fails unless the state demonstrates a compelling interest that cannot be achieved by less restrictive means.
The market participant doctrine allows a state acting as a buyer or seller to favor its own residents without violating the dormant commerce clause, even when the preference appears discriminatory on its face.
…constitutionality. These opinions are irreconcilable with today's decision, which sustains a public benefits program that facially discriminates against religion. We articulated the governing principle more than fifty years ago in Everson v. Board of Ed. of Ewing , 330 U.S. 1 (1947): "New Jersey cannot hamper its citizens in the…