We are living through a time of constitutional inversion. When it comes to the religion clauses in the First Amendment and the equal-protection guarantee in the Fourteenth Amendment, what was once constitutionally prohibited is now constitutionally required. Each of these areas has a different constituency, but they also share much in common. And, in both areas, the Supreme Court has transformed constitutional provisions for fighting racial segregation into instruments that preserve it.
Consider where the law stood in the 1970s. On the religion-clause front, in 1971, the Supreme Court decided Lemon v. Kurtzman, which invalidated two state statutes that reimbursed private religious schools for expenses that included teachers’ salaries and textbooks related to secular subjects. The state, the Court believed, could not send funds to religious institutions for these purposes. Likewise, in two subsequent cases, decided in 1975 and 1977, the Supreme Court invalidated similar portions of state-aid programs to religious schools. The Court ruled that using taxpayer money to fund field trips, instructional materials, or equipment for religious schools violated the establishment clause
On the equal-protection front, many prominent judges in the 1970s, including Justices William J. Brennan and Thurgood Marshall, believed that the equal-protection clause prohibited the government from enacting facially neutral laws (those that did not specifically mention race) when they resulted in different burdens on different racial groups, though many other judges and scholars disagreed. Brennan and Marshall maintained that the equal-protection clause prohibited the government from enacting policies that had adverse effects on racial minorities. Several federal trial courts and courts of appeals, including the United States Court of Appeals for the District of Columbia Circuit, did as well.