One of the first principles articulated in the Declaration of
Independence is that of equality. The Declaration asserts that “we hold
these truths to be self-evident, that all men are created equal.” The
rule of equality is tied to the creation of mankind by God. This
proposition is not the incantation of a religious establishment. It is a
legal fact acknowledged to be “self-evident.” The Declaration is a
legal instrument. It is intended for a legal object. It speaks of
equality in a legal sense. The Declaration asserts that mankind is
created and that as far as the law is concerned, mankind is created
equally human by God.9
There are at least two consequences of this proposition. The first
is that all human beings are endowed with the right to enjoy equal legal
rights, legal opportunity and legal protection.10
The second consequence of the rule of legal equality is that it
neither mandates nor permits the civil government to ensure equal social
position, economic well-being or political power. The Declaration’s
recognition that “all men are created equal” does not mean that the
civil government must treat each person the same on the basis of what
they do or on the basis of their conduct. Social and economic
achievement is a function of behavior or conduct. It is a function of
individual labor and enterprise. Political power is a function of
political involvement and knowledge of the political system. As long as
the law guarantees the right of an individual to participate on an
equal basis with other individuals in achieving the desired social
position, economic condition or political strength, then differences in
outcome or result do not contravene the rule of legal equality.
In essence, the rule of legal equality requires that the law be no
respecter of persons. A law is a respecter of persons if it treats
persons differently because of their immutable status or belief. The
law is not a respecter of persons, however, if it treats persons
differently on the basis of their acts or conduct.11
The law looks to what a person does, not who they are. Those who deny
the rule of equality or its origins in the law of God, or who argue
that equality is subject to changing cultural or social conditions, or
who twist the meaning of equality to require government mandated quotas,
do so in contravention of the principle of equality.
President Abraham Lincoln, referring to the Declaration of
Independence, affirmed that the United States was “conceived in liberty,
and dedicated to the proposition that ‘all men are created equal’.”12
Lincoln realized that the rule of equality applied to all men and
nations without regard to the age in which they lived, their location on
the globe, or the circumstances of history which surrounded them. He
spoke of this rule in a speech at Springfield in 1857. He said that
through the Declaration, the framers,
meant to set up a standard maxim for free society, which
should be familiar to all, and revered by all; constantly looked to,
constantly labored for, and even though never perfectly attained,
constantly approximated, and thereby constantly spreading and deepening
its influence and augmenting the happiness and value of life to all
people of all colors everywhere.13
Unfortunately, in many contexts including religious liberty
litigation (as will be explored shortly) the principle of equality has
been constantly ignored and labored against. The notion of rights
conditioned upon status and religious belief has been much more
preferred. It is quite common, therefore, that contrary to the rule of
equality, litigants seek to diminish the rights of others because of the
other’s belief, or expand their own rights because of their own
beliefs.
