Micah Schwartzman (University of Virginia School of Law) has posted The Asymmetry of Religious Motivation (135 Y.L.J.F. 467 (2025)) on SSRN. Here is the abstract:
The Supreme Court’s current approach to religious freedom reflects an asymmetric view of religious motivation. Under the Free Exercise Clause, the Court has increasingly embraced a motivational sufficiency principle, according to which a person’s sincere religious motivation is sufficient to render an act religious and therefore eligible for accommodation. Under the Establishment Clause, by contrast, the Court has moved toward a principle of motivational irrelevance: the religious motivations of public officials are treated as immaterial in determining whether governmental action impermissibly establishes religion. These two principles rest on conflicting conceptions of the constitutional significance of religious motivation—favoring it in the context of granting exemptions but disregarding it when the government acts or speaks in religiously charged ways.
This Essay reveals this doctrinal asymmetry through an analysis of Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission, in which the Court invalidated a state’s reliance on religious criteria other than motivation to determine eligibility for a statutory tax exemption. Although the Court did not explicitly adopt a motivational sufficiency principle, its reasoning is difficult to explain without appeal to that idea. By contrast, in Establishment Clause cases involving government speech and coercion, the Court has abandoned tests that made motivation relevant to constitutional analysis. The resulting asymmetry—recognizing religious motivation when doing so expands religious freedom but ignoring it for purposes of constraining governmental power—contributes to a jurisprudence of religious preference that is likely to persist despite its doctrinal incoherence.