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.