Nelson Tebbe (Brooklyn Law School) has posted Excluding Religion (University of Pennsylvania Law Review, Forthcoming) on SSRN. Here is the 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.
And a bit more from the conclusion:
Can government influence citizens’ choices among competing commitments of conscience, morality, politics, or philosophy? This Article’s argument has important implications for that deeper question. After all, welfare-state programs that excise religious observance from their benefits will sometimes have the effect of encouraging comparable secular activities. Whether that sort of effect is appropriate in our constitutional system is a matter of significant debate. It matters for the general issue of whether and how a liberal-democratic government should have the authority to influence choices among the dramatically divergent comprehensive commitments that are held by American citizens, living together in nomic communities. Does a liberal democracy lack any power to take positions on such questions?243 If the answer is no, what limits exist on its ability to influence private choices? Obviously, this Conclusion cannot resolve such a deep questions of general constitutional or political theory, but it has developed a sophisticated framework in the context of religious freedom that may have helpful implications for those larger matters.244
Interesting and recommended!