The Equal Protection Non-Evasion Amendment
Text, background, and what it would accomplish
Introduction
Equal protection is meant to be a constitutional floor—one that no person can be pushed beneath by private prejudice or shifting political winds. Yet in recent years, opponents of civil-rights safeguards have reframed discriminatory conduct as "speech" or "religious exercise," asking courts to turn the First Amendment into a broad exemption from equality law. That strategy now reaches children's safety: this Term's Chiles v. Salazar invites the Supreme Court to convert widely adopted bans on subjecting minors to "conversion therapy" into a free-speech problem rather than a professional-conduct rule.
This amendment addresses that drift directly. It preserves belief and expression in full, while making clear that neither may be used as a defense to deny any person the equal protection of the laws. And because interpretive drift has been driven as much by the judiciary as by legislatures, the amendment binds all courts—explicitly including the Supreme Court of the United States.
Background and need
The doctrine has shifted. Recent decisions have elevated free-exercise and compelled-speech theories while narrowing the Establishment Clause's neutrality command. Together, cases like Carson, Kennedy, and 303 Creative lower the wall between church and state and invite businesses to recast basic public-accommodations duties as compelled expression. That trajectory is reinforced by an observable trend: religious claimants now prevail before the Court at historically high rates. While "100%" overstates any single Justice's record as a literal statistic, Justices Alito and Thomas have displayed a near-uniform voting pattern in favor of religious plaintiffs in modern religion and compelled-speech cases. The overall effect is a jurisprudence that privileges exemptions which, in practice, can swallow civil-rights rules.
The political context magnifies the stakes. Republican-controlled legislatures have advanced an unprecedented wave of anti-trans measures—restricting health care, school life, identification documents, and public participation—often designed to provoke litigation that reframes equality protections as censorship or burdens on religion. Independent tracking shows how quickly conditions deteriorate in high-risk states as these bills move from proposal to law. The result is a rights-by-permission landscape in which equal protection becomes contingent on geography and judicial appetite for exemptions.
The immediate flashpoint is the attack on bans that protect minors from "conversion therapy." These laws—adopted across dozens of jurisdictions with bipartisan support and based on an overwhelming medical consensus—function like other health-and-safety standards that govern licensed practice. Treating them as viewpoint-based speech restrictions would convert professional regulation into unconstitutional "censorship," exposing LGBTQ youth to practices widely condemned as harmful and unscientific.
Finally, public confidence in judicial neutrality has been strained by ethics controversies and highly charged rulings that track ideological projects to collapse the space between church and state. An amendment that re-centers equal protection—while preserving freedom of belief and expression as such—provides a clear, democratically ratified rule of decision for every court.
Proposed Amendment
Amendment — Equal Protection Non-Evasion
Section 1. Substantive guarantee and non-evasion. No person or entity shall invoke religious belief, freedom of speech, freedom of association, or any other constitutional, statutory, or common-law protection as justification for denying any person the equal protection of the laws.
Section 2. Judicial constraint. No court of the United States or of any State, including the Supreme Court of the United States, shall interpret the Constitution, any statute, regulation, or rule to authorize, excuse, immunize, or otherwise permit conduct that denies any person the equal protection of the laws on the basis of religious belief, speech, association, or any other asserted right or liberty.
Section 3. Public accommodations and expressive claims. When a person or entity offers goods or services to the public, compliance with neutral, generally applicable anti-discrimination and equal-protection laws shall not be deemed compelled speech, compelled association, or endorsement of a customer's message. Rendering such goods or services is defined as commercial conduct, not the provider's own expression, for purposes of constitutional adjudication.
Section 4. Legal entities and religious defenses. Corporations, partnerships, associations, trusts, and other legal entities shall not assert religious-exercise defenses to obligations that implement equal protection in commerce, employment, housing, education, health care, credit, jury service, or public services. Natural persons retain freedom of belief and expression, but no such freedom may be used as a defense to deny equal protection to any other person.
Section 5. Belief and speech preserved. Nothing in this Article restricts anyone's right to hold beliefs or to speak, publish, assemble, or petition. This Article bars only the use of those rights as a justification for conduct that denies another person the equal protection of the laws. Providers may issue disclaimers clarifying that a customer's message is the customer's alone.
Section 6. Enforcement. This Article is self-executing and binds every branch and level of government. Congress and the several States may enforce it by appropriate legislation, including a private right of action with equitable relief and attorney's fees. No statute, rule, or doctrine recognizing defenses inconsistent with this Article shall have force or effect.
Section 7. Definitions. "Equal protection of the laws" includes the guarantees of the Fourteenth Amendment and all federal, State, and local laws that implement equality in access to and terms of public accommodations, employment, housing, education, health care, credit, jury service, and public services. "Deny" includes refusing, withholding, conditioning, or degrading the terms or availability of such goods, services, or opportunities on a prohibited basis.
Section 8. Severability and effective date. The provisions of this Article are severable. This Article takes effect upon ratification and applies prospectively to all actions and proceedings and to all ongoing conduct thereafter.
What this amendment accomplishes
This amendment restores the constitutional hierarchy the Fourteenth Amendment set in place: belief and expression remain robustly protected, but they cannot be wielded to deprive anyone else of equal protection. It resolves the "cake-as-speech" confusion by declaring that selling goods and services to the public is commercial conduct; equal-service rules do not compel a business's message. Where a service genuinely involves a creator's own custom expression, attribution concerns can be addressed with disclaimers rather than discrimination.
By closing the corporate-religion loophole in contexts where equality is at stake, the amendment allows faith to flourish in private belief and voluntary association while preventing artificial entities from evading civil-rights duties in the marketplace. It protects children and the integrity of licensed care by blocking speech-based end-runs around professional standards, including bans on subjecting minors to "conversion therapy." And it supplies national uniformity: a person's access to equal protection no longer hinges on a zip code or on a court's willingness to craft exemptions that swallow the rule.
In short, the amendment secures a simple principle in durable text: no court—and no one appearing before it—may turn speech or religion into a license to deny another person the equal protection of the laws.
