Excluding Religion (forthcoming)

Nelson Tebbe, Brooklyn Law School

Abstract

This Article considers a pressing issue in the constitutional law of religious freedom: whether government may single out religious actors and entities for exclusion from its support programs. Although the problem of selective exclusion is generating intense interest in lower courts and in informal discussions among scholars, so far the academic literature has not kept pace. Excluding Religion argues that generally government ought to be able to target religious actors and entities for denial of support, although the Article carefully circumscribes that power by delineating a set of principled limits. It concludes by developing a theoretical framework for considering the broader question of whether and when a liberal democracy may influence the decisions of private citizens concerning matters of conscience.