Also known as: facial discrimination · facially discriminatory · facially discriminate
Written by attorneys · grounded in primary & secondary sources — see 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.
Select any source to read its text and confirm it supports the definition.
Trinity 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 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.
A 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.
Forrest 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.
A 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…