Excluding religion

University of Pennsylvania Law Review

Volumn 156, Issue 5, 2008, Pages 1263-1339

  Tebbe, Nelson ^a  

^a BROOKLYN LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 46649113989     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (496)

1. See, e.g., Eulitt ex rel. Eulitt v. Me. Dep't of Educ., 386 F.3d 344, 356 (1st Cir. 2004).
2. See, e.g., Skoros v. City of New York, 437 F.3d 1 (2d Cir. 2006).
3. See, e.g., Faith Ctr. Church Evangelistic Ministries v. Glover, 480 F.3d 891 (9th Cir. 2007),
4. cert, denied, 128 S. Ct. 143 (2007).
5. Government "support," as that term is used in this Article, may take many forms, including cash aid, use of public property, construction contracts, and even state employment. The paradigmatic case involves financial aid programs such as school voucher schemes. Exclusion from other programs may require a somewhat different analysis. Denying civil service or construction contracts to religious persons alone, for instance, would likely violate the rule against unconstitutional conditions defended below. See infra Part III.B.
6. See Tilton v. Richardson, 403 U.S. 672, 679 (1971) (finding constitutional an act that was "carefully drafted to ensure that the federally subsidized facilities would be devoted to the secular and not the religious functions of the recipient institutions").
7. This Article does not address another pressing question-whether the government may deny funding to a category of groups that is defined without regard to religion, even if refusing aid in this general manner will disadvantage observant groups. For instance, lower courts have divided on whether public universities can refuse to recognize all student groups that discriminate on the basis of sexual orientation, despite the fact that some of these groups claim theological reasons for discriminating against gay men and lesbians in the selection of leaders. Compare Christian Legal Soc'y v. Walker, 453 F.3d 853, 867 (7th Cir. 2006) (ruling in favor of the Christian Legal Society (CLS) and against the university),
8. with Christian Legal Soc'y Chapter of Univ. of Cal. v. Kane, No. 04-4484, 2006 WL 997217, at *27 (N.D. Cal. May 19, 2006) (ruling against CLS on a similar claim). For a treatment of excluding expressive associations,
9. see Eugene Volokh, Freedom of Expressive Association and Government Subsidies, 58 STAN. L. REV. 1919 (2006). Such policies do not exclude religion as such, but instead deny support to a class of persons and organizations defined on some facially religion-neutral basis. This Article, by contrast, concerns laws and policies that either facially or purposefully single out religious actors.
10. See NOAH FELDMAN, DIVIDED BY GOD: AMERICA'S CHURCH-STATE PROBLEM-AND WHAT WE SHOULD DO ABOUT IT 210-11 (2005) (describing a series of major decisions in the 1990s and 2000s relaxing restrictions on government funding of religion).
11. See Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
12. Mitchell v. Helms, 530 U.S. 793 (2000) (plurality opinion);
13. Agostini v. Felton, 521 U.S. 203 (1997).
14. Mitchell, 530 U.S. at 835 (overruling Meek v. Pittenger, 421 U.S. 349 (1975),
15. and Wolman v. Walter, 433 U.S. 229 (1977));
16. Agostini, 521 U.S. at 235-36
17. (overruling Aguilar v. Felton, 473 U.S. 402 (1985),
18. and partially overruling Sch. Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985)).
19. Of course, the problem of excluding religion may have been confronted in earlier historical periods, before the Court began applying the Establishment Clause to the states, though it would not have been the focus of federal cases. See, e.g., PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE 363 (2002)
20. (discussing Judd v. Board of Education, 15 N.E.2d 576, 581-82 (N.Y. 1938), which addressed the separation of church and state in public schools under the New York Constitution).
21. 515 U.S. 819, 828-31 (1995).
22. 540 U.S. 712, 725 (2004). Certain other academic and financial criteria applied as well. Id. at 716.
23. A footnote in Davey, 540 U.S. at 720 n.3, that purported to resolve the tension by distinguishing Rosenberger as a speech case fooled few.
24. See, e.g., Douglas Laycock, Comment, Theology Scholarships, the Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes but Missing the Liberty, 118 HARV. L. REV. 155, 191-93 (2004) (acknowledging the conflict between Davey and Rosenberger)
25. ; see also Michael Stokes Paulsen, A Funny Thing Happened on the Way to the Limited Public Forum: Unconstitutional Conditions on "Equal Access" for Religious Speakers and Groups, 29 U.C. DAVIS L. REV. 653, 711-12 (1996) (arguing, before Davey was decided, that Rosenberger prohibits exclusions of religion from voucher schemes).
26. See Nelson Tebbe, Free Exercise and the Problem of Symmetry, 56 HASTINGS L.J. 699, 703-05 (2005).
27. See, e.g., Rust v. Sullivan, 500 U.S. 173 (1991) (speech);
28. Maherv. Roe, 432 U.S. 464 (1977) (privacy and reproductive rights);
29. Norwood v. Harrison, 413 U.S. 455 (1973) (parental right to choose private school).
30. See sources cited infra notes 33-38.
31. See Laycock, supra note 14, at 199 (calling one instance where the government funded secular programs, but not comparable religious programs, "rank discrimination");
32. see also CHRISTOPHER L. EISGRUBER & LAWRENCE G. SAGER, RELIGIOUS FREEDOM AND THE CONSTITUTION 222-27 (2007) (arguing generally against differentiation on the basis of religion, even in funding, while taking a nuanced position on Davey itself). Some older articles treated (and opposed) Supreme Court rulings that required the nonfunding of religion as a constitutional matter - a different topic from the one addressed in this Article.
33. See, e.g., Michael W. McConnell, The Selective Funding Problem: Abortions and Religious Schools, 104 HARV. L. REV. 989 (1991);
34. Paulsen, supra note 14, at 710-17;
35. see also Eugene Volokh, Equal Treatment Is Not Establishment, 13 NOTRE DAME J.L. ETHICS & PUB. POL'Y 341, 365 (1999) (arguing that equal funding of religion not only is constitutionally permitted, but also should be constitutionally required).
36. Although aiding religious exercise is obviously different from aiding religious messages, it makes sense to consider these forms of support together. Within the category of speech, it also makes sense to compare government speech that works to advance religion with government support of private religious speech. For example, a town's display of religious holiday symbols supports the affected religions in much the same way as its decision to open up its property for the private display of those same symbols. Finally, it is sensible to analogize a government willingness to let its facilities be used by a variety of private speakers to its actual funding of those speakers. See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 543-44 (2001) (drawing on public forum cases for guidance in a subsidy decision).
37. See, e.g., Widmar v. Vincent, 454 U.S. 263, 276 (1981) (invalidating an exclusion of sectarian speakers from an otherwise general government support program).
38. See Bronx Household of Faith v. Bd. of Educ., 492 F.3d 89, 91 (2d Cir. 2007) (vacating a judgment prohibiting an exclusion of worship, with a split vote on the merits and one vote to vacate on ripeness grounds);
39. id. at 132 (Walker, J., dissenting) ("[T]here is no doubt that this particular dispute . . . would benefit from a more conclusive resolution by [the Supreme] Court.");
40. see also Faith Ctr. Church Evangelistic Ministries v. Glover, 480 F.3d 891, 911 (9th Cir. 2007) (upholding an exclusion of worship from public facilities),
41. cert, denied, 128 S. Ct. 148 (2007).
42. See Larson v. Valente, 456 U.S. 228, 255 (1982) (invalidating a rule that exempted from certain registration and reporting requirements only religious organizations that receive more than half of their total contributions from members and affiliated organizations).
43. See, e.g., FCC v. League of Women Voters, 468 U.S. 364, 402 (1984) (invalidating grants given only to those broadcasting stations that do not engage in editorializing);
44. Speiser v. Randall, 357 U.S. 513, 518 (1958) (invalidating a tax exemption conditioned on taking an antisubversion oath).
45. See Locke v. Davey, 540 U.S. 712, 725 (2004). This Article does not distinguish between the terms "differentiation" and "discrimination." In this regard, it follows what seems to be the practice of at least some members of the Court.
46. See, e.g., id. at 726
47. (Scalia, J., dissenting) ("[T]he minimum requirement of neutrality is that a law not discriminate on its face." (internal quotation marks omitted)
48. (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993)). Instead, I carefully separate out the term "animus."
49. See infra Part III.C.
50. See, e.g., Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992).
51. See, e.g., Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983).
52. The idea that the government may defund religious activity that it may not be able to prohibit should be familiar. In Bob Jones University v. United States, for instance, the Court assumed that the federal government could not prevent the school from imposing a religiously based rule against interracial dating. 461 U.S. 574, 593-94 (1983). Nevertheless, it held that the IRS could refuse to extend a tax exemption to a school that engaged in such a practice.
53. Id. at 604.
54. Thanks to Bruce Ackerman for emphasizing this distinction.
55. See Tebbe, supra note 15, at 723-32 (expounding a "liberty conception" of free exercise). That view of free exercise, which interprets the provision primarily as a right to autonomy, is not exclusive. Free exercise also includes certain freestanding commitments to government evenhandedness, such as the guarantee of neutrality between denominations or sects.
56. See infra Part III.A (delving into the doctrine of nonpreferentialism).
57. But see Sherbert v. Verner, 374 U.S. 398, 415-16 (1963) (Stewart, J., concurring in the judgment) ("I think that the guarantee of religious liberty embodied in the Free Exercise Clause affirmatively requires government to create an atmosphere of hospitality and accommodation to individual belief and disbelief. In short, I think our Constitution commands the positive protection by government of religious freedom . . . .").
58. This Article does not analogize religious liberty to equal protection, which more readily prohibits discrimination in government support programs. See infra note 111. Free exercise and antiestablishment include some guarantees of neutrality and equality, but these are specific to religious freedom and thus not profitably considered part of the more general right to equal protection.
59. I assume here that religion is special in the sense that government decision makers might legitimately conclude that funding sectarian institutions poses particular dangers to equal citizenship, community stability, and religious freedom. Religion need not be considered unique as a matter of abstract argument for this approach to work. Cf. Brian Leiter, Why Tolerate Religion?, 25 CONST. COMMENT, (forthcoming 2008) (critiquing the uniqueness of religion on theoretical grounds). Rather, the idea here is that lawmakers may take into account the fact that religion has long been thought to occupy a special place in American history and tradition. This Article brackets any further consideration of the notoriously difficult questions surrounding the particularity of religion as compared to other deeply held commitments.
60. See Christopher L. Eisgruber & Lawrence G. Sager, Unthinking Religious Freedom, 74 TEX. L. REV. 577, 601 (1996) (book review) (including equal citizenship as one facet of a theory of religious freedom); Posting of Jack Balkin to Balkinization, Reciprocity, the Religion Clauses and Equal Citizenship, http://balkin.blogspot.com/2005/07/ reciprocity-religion-clauses-and-equal.html (July 1, 2005, 22:30 EST) ("I have always believed that at the heart of the jurisprudence of the religion clauses is the problem of securing equal citizenship in a country whose citizens have very different and sometimes contradictory beliefs about religion. The goal of the religion clauses is twofold-first, to preserve religious conscience, and second, to ensure equal citizenship for all persons regardless of their religious beliefs.").
61. Cf. Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O'Connor, J., concurring) ("The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community.").
62. See Bronx Household of Faith v. Bd. of Educ., 492 F.3d 89, 105 n.8 (2d Cir. 2007) (Calabresi, J.) (describing reasonable grounds on which school officials decided not to allow worship by private groups after hours on school property, including a desire to avoid allowing public school buildings to become "identified with the church" in such a way that "members of the community who are not church members would feel 'marginalized'" (emphasis omitted));
63. Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, 127 F.3d 207, 214 (2d Cir. 1997) ("We think that it is reasonable for state legislators and school authorities to avoid the identification of a middle school with a particular church.").
64. See Richard W. Garnett, Religion, Division, and the First Amendment, 94 GEO. L.J. 1667 (2006) (analyzing, but not endorsing, this argument).
65. See Van Orden v. Perry, 545 U.S. 677, 698 (2005) (Breyer, J., concurring in the judgment) (explaining that a "basic purpose [] of [the Religion] Clauses" is "to avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike").
66. Coercing taxpayers was a concern that figured prominendy at the time of the Founding and has recendy been revitalized by prominent thinkers. See FELDMAN, supra note 7, at 37-38 (describing Madison's view).
67. Thanks to Robert Tsai for pressing this point in correspondence.
68. Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
69. See Widmar v. Vincent, 454 U.S. 263, 289 (1981) (White, J., dissenting) (arguing that exclusion of religion ought to be permitted on the ground that the state has a "sufficientiy strong" interest in providing greater protection against the establishment of religion than is required by the Constitution).
70. See infra Part III.A.
71. For an important set of arguments surrounding school vouchers, see PETER H. SCHUCK, DIVERSITY IN AMERICA: KEEPING GOVERNMENT AT A SAFE DISTANCE 297-307 (2003).
72. Federalism considerations provide further support for allowing the practice of excluding religion to continue among the states. Although this Article does not leverage diose arguments, they play an important role in the literature. Of particular interest here are works that support the Court's decision in Davey on federalism grounds. E.g., Ira C. Lupu & Robert W. Tuttle, Federalism and Faith, 56 EMORY L.J. 19, 67-83 (2006);
73. Jesse R. Merriam, Finding a Ceiling in a Circular Room: Locke v. Davey, Federalism, and Religious Neutrality, 16 TEMP. POL. & CIV. RTS. L. REV. 103, 106 (2007). Many states provide greater antiestablishment protection than the Court requires as a matter of federal law. Sometimes they do so under state constitutional provisions, known as "Blaine Amendments," and sometimes they do so in other ways. This dimension of the problem is rich - too rich to be treated adequately here.
74. For a more comprehensive take on this "baseline problem," see Tebbe, supra note 15, at 722-23.
75. See infra Part III.C.
76. See infra Part III.B.
77. See Rust v. Sullivan, 500 U.S. 173, 198 (1991) (holding that Congress may require recipients of federal family planning funds to separate out nonfunded counseling and referral services concerning abortions);
78. FCC v. League of Women Voters, 468 U.S. 364, 400 (1984) (noting that Congress could fund only noneditorializing broadcast activities if it allowed public broadcasting stations to segregate out and separately fund their editorializing activities).
79. If there were an exclusion of religion from a broad welfare entitlement that was not prohibited by this Article's mechanisms, any infringement on religious freedom that it imposed could conceivably be invalidated by general free exercise principles. See Tebbe, supra note 15, at 729-32.
80. U.S.C. § 1996a(b) (2000). Absent the statutory exemption, Native Americans would not have a constitutional right to use peyote without being punished under the Controlled Substances Act. See Employment Div. v. Smith, 494 U.S. 872, 890 (1990) (leaving religious exemptions from drug laws up to the legislature).
81. See Cutter v. Wilkinson, 544 U.S. 709, 720-21 (2005) (upholding RLUIPA's prison provisions against an Establishment Clause challenge while acknowledging that observant inmates would receive less protection under the Constitution than they do under RLUIPA).
82. See Tebbe, supra note 15, at 714 (arguing that many legislative accommodations have the effect, if not the purpose, of advantaging religious actors in this way).
83. Of course, the precise inverse of excluding religion - that is, singling out observance for special subsidization-would most often violate the Establishment Clause. It is difficult to imagine that such a program could have a governmental purpose that did not favor religion and was not impermissible for that reason. Exclusions of religion, by contrast, need not be motivated by antireligious animus, and in fact may not be. See infra Part III.C For instance, state constitutional provisions that enact strong antiestablishment commitments have not been found to constitute impermissible discriminations against religion.
84. See, e.g., Witters v. State Comm'n for the Blind, 771 P.2d 1119, 1122-23 (Wash. 1999) (en banc) (holding that a ban on certain funding under the state constitution did not constitute purposeful discrimination on the basis of religion). Similarly, legislative accommodations driven by an intent to favor a particular religious practice are not proper.
85. See Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 335 (1987) (characterizing the "secular legislative purpose" requirement as preventing lawmakers "from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters").
86. Locke v. Davey, 540 U.S. 712 (2004).
87. See, e.g., EISGRUBER & SAGER, supra note 18, at 226 (taking issue with Davey's rationale);
88. Laycock, supra note 14, at 199 (arguing that Davey opens the door for the government to "offer[] broad conditional subsidies and buy[] up the right to free exercise of religion").
89. For an argument that the Davey Court missed an opportunity to declare that equal funding of religious entities is not required, see Frank S. Ravitch, Locke v. Davey and the Lose-Lose Scenario: What Davey Could Have Said, but Didn % 40 TULSA L. REV. 255, 256 (2004).
90. Davey's only harbinger was dicta indicating that a constitutionally required exclusion of sectarian schools from a tuition reimbursement scheme would not itself violate other provisions of the Constitution.
91. See Sloan v. Lemon, 413 U.S. 825, 834 (1973) ("[V]alid aid to nonpublic, nonsectarian schools would provide no lever for aid to their sectarian counterparts."). Perhaps because Sloan addressed the different question of whether excluding religion was required, not whether it was permitted, it was not even cited in Davey.
92. Davey, 540 U.S. at 713;
93. see also EISGRUBER & SAGER, supra note 18, at 223 (calling the seven votes an "overwhelming majority," at least "in this field").
94. Davey, 540 U.S. at 716.
95. See id. at 719
96. (citing Witters v. Wash. Dep't of Servs. for the Blind, 474 U.S. 481, 487 (1986)).
97. Of course, states are generally free to provide greater protection for individual rights than what is required by the federal Constitution. See, e.g., PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980) (holding that a state law extending free speech and petition rights to the grounds of a privately owned public shopping center is constitutional).
98. Transcript of Oral Argument at 31-32, Davey, 540 U.S. 712 (No. 02-1315).
99. Id. at 33-34.
100. Davey, 540 U.S. at 720.
101. Id. at 721.
102. Id. at 725.
103. Here I agree with Professor Laycock that Davey came out the way it did largely because the government's differentiation on the basis of religion did not impose a significant burden on Davey's ability to pursue his calling.
104. See Laycock, supa note 14, at 214 ("[T]he unifying theme [in Davey] is that facial discrimination against religion is presumptively unconstitutional if, and only if, the discrimination burdens a religious practice.... [A] mere refusal to fund does not impose a substantial burden."). I also agree that the Court's no-burden approach is difficult to apply outside the area of funding - as, for instance, in the context, of religious speech.
105. See infra Part II.
106. Some experts think the outcome in Davey depended not on the absence of a burden, but instead on the lack of governmental "animus" toward religion. See, e.g., Marci A. Hamilton, Religious Institutions, the No-Harm Doctrine, and the Public Good, 2004 BYU L. REV. 1099, 1101-02. My own reading is that the Davey Court probably did not mean to suggest that a showing of antireligious animus was necessary to make out a constitutional claim, though it did indicate that such a showing would be sufficient.
107. See infra Part III.C.
108. Others believe Davey is limited to funding carve-outs for practices of particular religious intensity, such as training for the clergy. See Laycock, supra note 14, at 184-87 (assessing this argument and calling training for the clergy "an essentially religious endeavor"
109. (quoting Davey, 540 U.S. at 721)). Although this interpretation is reasonable, it is unlikely to control future cases.
110. Id. at 185-86. As Professor Laycock points out, religious intensity has not mattered much in the Court's decisions regarding the question of what a government may fund without violating the Establishment Clause. It is thus less likely that the Justices will rely on that factor when considering what a government must fund.
111. Id. at 186. For this Article, the salient point is that a government may legitimately come to believe that refusing to fund religious practices will serve desirable policy ends, even if those practices are not as "essentially religious" as studying to become a cleric.
112. Davey, 540 U.S. at 726 (Scalia, J., dissenting) (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)).
113. Id. at 728.
114. Id. at 730.
115. Judge McConnell advocates a "presumptive obligation to fund abortions when the government funds childbirth, and to fund religious schools when it funds secular schools, unless there is a plausible, non-hostile reason for the selective funding," McConnell, supra note 18, at 1046. That follows from a general idea that " [government must keep its hands off" certain protected choices.
116. Id. at 995. While he agrees that, ordinarily, merely refusing to subsidize the exercise of a constitutional right will not skew private incentives, funding only one of two "substitute" protected activities may do so and therefore would require special justifications related to the nature of the particular right being excluded.
117. Id. at 1001-03.
118. See Harris v. McRae, 448 U.S. 297 (1980);
119. Maher v. Roe, 432 U.S. 464 (1977). It is conceivable that a funding exclusion could be overturned if found to impose an undue burden on a woman's ability to obtain an abortion. Planned Parenthood v. Casey of Se. Pa., 505 U.S. 833, 874 (1992). Given the Court's view that virtually no abortion funding ought to be considered part of the welfare-state baseline of entitlements, however, it is difficult to imagine a denial of support that, in its view, would impose such a burden. Perhaps the government has some duty to facilitate abortions in the prison context.
120. This Section is indebted to Eugene Volokh's discussion, in a different context, of what he calls "The No Duty To Subsidize Principle." See Volokh, supra note 6, at 1925-27.
121. Maher, 432 U.S. at 475.
122. Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925).
123. Norwood v. Harrison, 413 U.S. 455, 462 (1973).
124. Meyer v. Nebraska, 262 U.S. 390, 402-03 (1923).
125. Rust v. Sullivan, 500 U.S. 173, 196-97 (1990).
126. Regan v. Taxation with Representation, 461 U.S. 540, 550-51 (1983).
127. Rust, 500 U.S. at 193. Though again, excluding religious speech raises special concerns under existing law.
128. See infra Part II.B.
129. Rust, 500 U.S. at 194. I will show below that this statement does not apply when the state seeks to appropriate funds to support a wide range of private speech with the exception of a certain viewpoint. Other limitations on this general statement are set out in Part III, infra.
130. Here I agree with Professor Laycock, who thinks Rehnquist's "paraphrase of Rust" was "unmistakable." Laycock, supranote 14, at 176.
131. Locke v. Davey, 540 U.S. 712, 721 (2004).
132. See Laycock, supra note 14, at 176 & n.126 (comparing Davey's language to that of Rust and Harris).
133. See McConnell, supra note 18, at 989-90 (pointing out this inconsistency among commonly held positions on funding of free exercise and abortion). Progressives and conservatives alike, if they are to preserve the ability of the government to influence citizen choices where they care about them most, face pressure to develop positions that treat selective facilitation in a consistent manner across different areas of constitutional law.
134. See supra Part I.A (laying out the basic argument for excluding religion).
135. See Eulitt ex rel. Eulitt v. Me. Dep't of Educ., 386 F.3d 344 (1st Cir. 2004) (up holding the Maine voucher program against a federal constitutional challenge);
136. Anderson v. Town of Durham, 895 A.2d 944 (Me. 2006) (same);
137. see also Bush v. Holmes, 886 So. 2d 340, 362-64 (Fla. Dist. Ct. App. 2004) (holding that a provision of the Florida state constitution prohibiting the use of school vouchers at religious schools does not violate the federal Free Exercise Clause).
138. See Freedom from Religion Found., Inc. v. McCallum, 179 F. Supp. 2d 950, 981 (W.D. Wis. 2002) (holding, on summary judgment, that excluding faith-based providers from a program funding certain private-sector substance abuse treatment centers would not violate the Free Exercise Clause, but coming to that conclusion in the context of a ruling that such an exclusion was constitutionally mandated).
139. See Anderson, 895 A.2d at 959 (holding that merely denying tuition assistance for sectarian schooling does not substantially burden the constitutional right to attend a private religious school).
140. Sometimes the Justices draw a further distinction between indirect aid and aid that goes to a religious organization directiy, but only because of a genuinely independent choice of a private individual. See Mitchell v. Helms, 530 U.S. 793, 815-20 (2000) (plurality opinion) (making such a distinction in reviewing a federal statute under which funds supplied by the federal government were used to lend materials and equipment to public and private schools through state and local agencies);
141. id. at 841-42 (O'Connor, J., concurring in the judgment) (defending a similar distinction). The term "indirect" then indicates that aid flows first to the individual, perhaps in the form of a voucher, and only then to a religious entity. Phrases such as "genuinely independent and private choices,"
142. id. at 810
143. (quoting Agostini v. Felton, 521 U.S. 203, 226 (1997)), by contrast, emphasize the control of a citizen, not the path the aid takes in its journey from the state to a religious entity. Normally, however, indirectness and the private-choice feature get conflated in the Justices' usage.
144. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 649 (2002) (juxtaposing "direct aid programs" with "true private choice programs"). Presumably this is because indirect aid programs virtually always channel support according to the wishes of private citizens. Conflation of the terms may also reflect a judgment that there is no constitutionally significant difference between a true voucher program and one in which aid gets steered directly to a religious organization according to the free choice of a private citizen.
145. See Freedom from Religion Found., Inc. v. McCallum, 324 F.3d 880, 882 (7th Cir. 2003) (Posner, J.) (holding that, under the Establishment Clause, "there is no difference between giving the voucher recipient a piece of paper that directs the public agency to pay the service provider and the agency's asking the recipient to indicate his preference and paying the provider whose service he prefers").
146. See, e.g., Mitchell, 530 U.S. at 836 (upholding the appropriation of federal funds to private religious schools);
147. Agostini v. Felton, 521 U.S. 203 (1997) (upholding a New York City program providing remedial education in sectarian schools).
148. Direct aid may not be used for religious purposes, at least according to Justice O'Connor's controlling opinion in Mitchell. 530 U.S. at 867. And under both Justice O'Connor's approach and the Mitchell plurality opinion, direct aid in cash raises special constitutional dangers.
149. See id. at 818-19 ("Of course, we have seen special Establishment Clause dangers when money is given to religious schools or entities directly rather than . . . indirectly." (citation and internal quotation marks omitted));
150. id. at 844 (O'Connor, J., concurring in the judgment) ("[T]he plurality does not actually hold that its theory extends to direct money payments.").
151. At first, McCallum appears to present an example of excluding religion from a direct aid program. Under the program, the Wisconsin Department of Corrections entered into contracts with private halfway houses under which a defined amount would go to the institution chosen by a supervised offender.
152. McCallum, 179 F. Supp. 2d at 959-62. The trial court ruled that excluding faith-based programs from that aid program would not violate either the Free Exercise Clause or the Free Speech Clause.
153. Id. at 978-82. Yet the Wisconsin program differed from a direct aid exclusion in two ways. First, any exclusion of religious providers would have been mandated by the Establishment Clause, not adopted as a policy matter.
154. Id. at 978. Second, the Wisconsin program may not have qualified as direct aid because, although aid did flow uninterruptedly from the state to halfway houses, it did so only following the free choice of supervised offenders, making it arguably equivalent to a voucher program.
155. McCallum, 324 F.3d at 882 (Posner, J.).
156. But see Mitchell, 530 U.S. at 842-44 (O'Connor, J., concurring in the judgment) (distinguishing between indirect aid and a per capita direct aid program).
157. McCallum thus does not evaluate the constitutionality of a policy-based exclusion of religion from a direct aid program.
158. Cf. Mitchell, 530 U.S. at 836 (upholding a program that provided educational materials to all public and private schools).
159. Could a legislature extend tax exemptions to all nonprofit organizations other than religious ones? Currently, neutral tax exemptions for nonprofit groups may include religious organizations, of course. See, e.g., Walz v. Tax Comm'n, 397 U.S. 664, 680 (1970) (upholding a property tax exemption that included land owned by religious organizations for religious worship). Barring religious groups from such exemptions would count as an exclusion of religion from a direct aid program, because a tax exemption is inherendy equivalent to a grant, despite the Court's occasional statements to the contrary.
160. See id. at 675 ("The grant of a tax exemption is not sponsorship since the government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state."). No such program has confronted the courts, to my knowledge, but one well may. If that happens, it may be argued that singling out religious entities for denial of a tax exemption resonates uncomfortably with a history of hostility toward religion through taxation.
161. See Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 793 (1973) (characterizing the Walz tax exemption as a guard against government oppression of religion through taxation).
162. Cf. Kenji Yoshino, Covering, 111 YALE L.J. 769 (2002) (describing new forms of discrimination not against entire suspect classes, but only against members of those classes who engage in certain activities).
163. See Christian Legal Soc'y Chapter of Univ. of Cal. v. Kane, No. 04-4484, 2006 WL 997217, at *25 (N.D. Cal. May 19, 2006) (upholding Hastings Law School's refusal to recognize CLS on the ground that it violated a general rule against discrimination on the basis of sexual orientation).
164. Laycock, supra note 14, at 197. The charitable choice provisions that preceded the Bush administration's faith-based initiatives explicitly preserved the ability of religious employers to consider faith when hiring.
165. See 42 U.S.C. § 604a(f) (2000) (noting that a religious organization's ability to discriminate on the basis of religion in hiring "shall not be affected" by participation in a charitable choice program).
166. See 42 U.S.C. § 2000e-1 (a) (2000) (exempting religious institutions from a federal law prohibiting employment discrimination on the basis of religion).
167. Of course, the policy may be phrased neutrally, but because only religious groups are permitted to discriminate on the basis of religion under federal law, and because policymakers can be presumed to be aware of that, exclusion of such groups from support is properly deemed a targeted exclusion of religion.
168. The exclusion would be prohibited if it amounted to preferentialism on the basis of sect or ran afoul of any of the other limits set out in Part III. See infra Part III.A (discussing the nonpreferentialism principle).
169. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993) ("At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.");
170. EISGRUBER & SAGER, supra note 18, at 222-27 (concluding that Davey is likely inconsistent with the authors' principle of "Equal Liberty," though it may be justifiable on pragmatic grounds) ;
171. Laycock, supra note 14, at 199 ("Funding secular programs, but not religious equivalents that provide the same secular benefit, is rank discrimination .. . .");
172. Paulsen, supra note 14, at 658 (opposing the common practice of "outright discrimination against religious speakers and groups in terms of. . . public privileges of various kinds");
173. see also id. at 662 ("[T]he essential intellectual battle has been won: There is no 'religion exception' to the Free Speech Clause or the Free Press Clause; religious speakers and groups are entitled to the same equal access to public fora, public facilities, and public funds as other private speakers and groups receive." (footnote omitted));
174. Volokh, supra note 18, at 365-73 (arguing against discrimination on the basis of religion in funding).
175. There is historical evidence that the Federal Free Exercise Clause was pardy directed against discrimination on the basis of religious differences. See Philip Hamburger, More Is Less, 90 VA. L. REV. 835, 854-55 (2004). That evidence, however, does not necessarily pertain to selective denials of state aid.
176. See McDaniel v. Paty, 435 U.S. 618, 639 (1978) (Brennan, J., concurring) (arguing that ministers may not be excluded from office partly because "government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits");
177. see also Volokh, supra note 18, at 365
178. (quoting McDaniel and arguing that "equality rules generally apply to government benefits as well as government prohibitions");
179. Volokh, supra note 6, at 1936 & n.67 (noting that the government usually cannot discriminate on the basis of religion in its support so that, for instance, a government hospital that provides secular circumcisions cannot refuse to provide religious ones, but acknowledging Davey as "the chief exception" to that rule).
180. See Laycock, supra note 14, at 173 (arguing that Joshua Davey's case against Washington's scholarship program ought to have been "a slam dunk" under Lukumi).
181. See Rust v. Sullivan, 500 U.S. 173, 193-94 (1991) (reasoning that in selectively funding counseling concerning childbirth, but not concerning abortion, "the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other" and that "[t]his is not a case of the Government suppressing a dangerous idea, but of a prohibition on a project grantee or its employees from engaging in activities outside of the project's scope" (internal quotation marks omitted)).
182. Id. at 194.
183. See id. ("[W] hen the Government appropriates public funds to establish a program it is entided to define the limits of that program.").
184. For more on this issue, see Part I.A and the Conclusion.
185. Some, however, draw a stronger distinction between the two rights than this Article does. See, e.g., Laycock, supra note 14, at 177 ("The right to choose abortion is a right to be free of undue burdens; the right to religious liberty is a right to government neutrality.").
186. See supra Part I.A (summarizing the effect of these considerations on policymakers).
187. See FELDMAN, supra note 7, at 6 (arguing that Americans are currently deeply divided by divergent visions of the proper relationship between religion and government).
188. But cf. Garnett, supra note 36 (arguing that religion's capacity to divide ought not to exert undue influence in antiestablishment decisions).
189. For instance, a legislature could not pass a resolution declaring "America Is Not a Muslim Nation," even if the law did not impose any civil or criminal penalties. See Tebbe, supra note 15, at 727.
190. Locke v. Davey, 540 U.S. 712, 719 n.2 (2004)
191. (quoting WASH. CONST, art. I, § 11).
192. Why has the Court not applied equal protection principles to excluding religion? After all, modern equal protection jurisprudence prohibits discrimination in the area of funding as well as in regulation, though perhaps not in precisely the same way. Noticing this, Justice Scalia invoked equal protection cases in his Davey dissent. He cited them by analogy, arguing that just as no burden need be shown in order to make out a constitutional violation in other areas of law, so too the indignity of suffering discrimination based on religion ought to suffice.
193. See id. at 731
194. (Scalia, J., dissenting) (invoking Brown v. Bd. of Educ., 347 U.S. 483 (1954),
195. and Craig v. Boren, 429 U.S. 190 (1976)). Perhaps he could have gone further and said that excluding religion violates the Equal Protection Clause itself.
196. This Article does not closely interrogate the relationship between religious liberty and the right to equal protection. It goes only so far as to say that religious freedom is best understood primarily as a right to autonomy or liberty, not neutrality or equality. Certainly, rights to free exercise and antiestablishment build in certain independent neutrality or equality protections for religion, as this Article acknowledges at several points. But those protections are tailored to specific problems surrounding religious freedom and should not be reduced to more general equal protection guarantees. This Article will leave the matter there, since the relationship between religious liberty and equal protection is an exceedingly complex matter worthy of its own careful treatment. Thanks to Philip Hamburger for pressing me to address this point.
197. Judge McConnell has said that "a government program may be unconstitutional if it funds a substitute for a constitutionally protected choice without also funding the individual's preferred choice," unless the government has a reason for the disparity that is not "objectively hostile to the right in question."
198. McConnell, supra note 18, at 1046. His rationale seems to be that officials should refrain from attempting to influence the private exercise of constitutional rights in one direction or another.
199. See 42 U.S.C. § 2000bb(b) (1) (2000) (explaining that a purpose of the law is "to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963)
200. and Wisconsin v. Yoder, 406 U.S. 205 (1972), and to guarantee its application in all cases where free exercise of religion is substantially burdened").
201. The federal RFRA, for example, provides:
202. (a) In general Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
203. (b) Exception Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
204. U.S.C. § 2000bb-1 (2000).
205. See City of Boerne v. Flores, 521 U.S. 507, 533-34 (1997) ;
206. see also Guam v. Guerrero, 290 F.3d 1210, 1221-22 (9th Cir. 2002). A similar law, the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc to 2000cc-5 (2000), provides analogous protection to religious inmates in federal and state prisons and to religious people and institutions that face certain land use restrictions.
207. Volokh, supra note 6, at 1950.
208. Id. at 1950 n.116.
209. Id. at 1949.
210. Sherbert v. Verner, 374 U.S. 398, 409 (1963). In Smith, Justice Scalia suggested that the unemployment board in Sherbert discriminated purposefully when it granted individualized exemptions on secular grounds but refused to do so on religious grounds. Employment Div. v. Smith, 494 U.S. 872, 883 (1990);
211. cf. Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 148 (1987) (Stevens, J., concurring) (writing that the state "regards [the plaintiff's] religious claims less favorably than other claims" (internal quotation marks omitted)).
212. Thomas v. Review Bd., Ind. Employment Sec. Div., 450 U.S. 707 (1981);
213. see also Frazee v. Ill. Dep't of Employment Sec., 489 U.S. 829 (1989) (coming to a similar conclusion in another unemployment benefits case);
214. Hobbie, 480 U.S. at 141 (same).
215. Even after Smith, and even absent RFRA, the employment benefits rule has remained a mainstay of free exercise jurisprudence.
216. See Smith, 494 U.S. at 883 (explicitly preserving the Sherbert line of unemployment benefits cases).
217. Sherbert, 374 U.S. at 404.
218. See Volokh, supra note 6, at 1956 ("Under these cases, the government was indeed required to subsidize the exercise of what was then seen as a constitutional right");
219. id. at 1959
220. ("Whatever one thinks of the merits of Sherbert, RFRAs do make the Sherbert reasoning part of the statutory mandate, and under that reasoning the government must sometimes subsidize religious practice.").
221. See id. at 1954-62
222. (discussing Sherbert and Thomas). One way to avoid the conclusion that RFRAs require equal subsidies is to read Sherbert itself as resting not on a conclusion that the funding condition substantially burdened religious activity, but rather on the fact that the state there had banned only the practices of minority denominations instead of imposing a religion-neutral condition. Christians who observed the Sabbath on Sunday were not affected by the unemployment policy at issue in the case because, at the time, Sunday was set aside by law as a day of rest. Even in times of national emergency, when workers could be required to report for duty on Sundays, people who observed the Sabbath on that day would be exempt.
223. Sherbert, 374 U.S. at 406. Therefore, there was some evidence that the Sherbert policy discriminated on the basis of denomination, and not just on the basis of religion. This Article's argument would prohibit that sort of discrimination among faiths.
224. See infra Part III.A.
225. See 42 U.S.C. § 2000bb (2000) (affirming explicitly that the law was meant to restore the rule of Sherbert and the other unemployment benefits decisions). Excluding religion might be seen as interfering with observance in much the same way - by denying a benefit.
226. See Laycock, supra note 14, at 177 (articulating a version of this objection).
227. Whether and how RFRA and its cognates will continue to relieve observant people from funding conditions is actually a difficult issue. See Volokh, supra note 6, at 1951 ("Should . . . objecting groups prevail and get the benefits while escaping the condition? This turns out to be a murky issue . . . ."). There is a strong argument that many such conditions are properly viewed not as "substantial burdens" on free exercise within the meaning of RFRA, but instead as mere governmental refusals to fund the exercise of a constitutional right.
228. See id. at 1957-58. Can it really be said, for instance, that a state's decision to fund only public schools substantially burdens the constitutional right of parents to send their children to religious schools?
229. See id. at 1958. And beyond the question of whether a funding condition constitutes a substantial burden, hard questions remain, such as whether the government's interest in the condition is compelling, whether the condition is narrowly tailored, and so forth.
230. See id. at 1962-65. Thus, the objection depends on a series of questionable doctrinal moves.
231. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546-47 (1993) (striking down Hialeah's ordinance under the Smith test after finding purposeful discrimination against Santeria adherents).
232. That might raise an awkward possibility. If this Article is correct that purposeful discrimination against religion in government support is permissible in many circumstances, and if RFRAs do indeed render presumptively unlawful some general funding conditions, the odd result might be that while incidental burdens imposed by general conditions are presumptively unlawful, seemingly more egregious purposeful denials of funding would not be. Under that scheme, for instance, it is possible to imagine religious parents arguing that a general denial of funding to private schools incidentally burdened their rights to supply their children with a religious education. Yet other parents would have no claim against a law that specifically targeted religious private schools for denials of funding. This would be an uncomfortable pair of results; but such awkwardness will virtually never arise in practice because that type of disparity will simply not occur. Most often, courts will sensibly find that mere denials of support do not impose substantial burdens on observance and therefore that RFRA's strict scrutiny test is not triggered. The refusal to extend unemployment benefits in Sherbert was a rare case, justified by the importance of subsistence support and perhaps other unique circumstances. Even before Smith, the Court never extended its exception to any funding condition outside that special context. There is little reason to think that it will do so under RFRA.
233. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1995) (noting that the government may "say what it wishes" when it promotes particular policies). For an example of viewpoint discrimination in government speech concerning religion, see the various resolutions defending the constitutionality of recitation of the Pledge of Allegiance. S. Res. 292, 107th Cong. (2002) (enacted);
234. H.R. Res. 459, 107th Cong. (2002) (enacted).
235. Rust v. Sullivan, 500 U.S. 173, 203 (1991);
236. see also Rosenberger, 515 U.S. at 833 (reading Rust to involve facts where "the government did not create a program to encourage private speech but instead used private speakers to transmit specific information pertaining to its own program," and recognizing that "when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes").
237. Rust, 500 U.S. at 180.
238. See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541 (2001) (interpreting Rust as an approval of viewpoint discrimination in government speech, although the government in that case delivered its message through private speakers). Of course, that reading of Rust has been criticized, but this Article follows the Court's view.
239. Cf. Michael C. Dorf, Dicta and Article III, 142 U. PA. L. REV. 1997, 2055 n.212 (1994) (discussing contexts in which government funding of private speech may not be equated with government speech, making viewpoint discrimination impermissible).
240. See Rust, 500 U.S. at 193-94 ("The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way. In so doing, the Government. . . has merely chosen to fund one activity to the exclusion of the other. . . . [W] hen the government appropriates public funds to establish a program it is entitled to define the limits of that program.").
241. See Abner S. Greene, Government of the Good, 53 VAND. L. REV. 1, 11-12 (2000) (arguing that government speech may often permissibly endorse contested viewpoints).
242. See McCreary County v. ACLU, 545 U.S. 844, 874 (2005) (suggesting in dicta that certain courtroom displays could include images of the Ten Commandments). A tougher question is whether Congress could explicitly decline to endorse religion as a whole-for instance, by issuing a nonbinding resolution stating that "America Is a Secular Nation." But it is not necessary to take a position on that difficult issue in order to defend simpler exclusions of religious expression from government speech. The only contention here is that it must be permissible for officials to decide to promote only secular positions, even where excluding religious messages is not constitutionally required.
243. See, e.g., 42 U.S.C. § 710 (2000);
244. id. § 300z.
245. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1995) (interpreting Rust to mean that "when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes") ;
246. Rust, 500 U.S. at 194 (rejecting the petitioner's argument that government funding choices reflect viewpoint discrimination if the government fails to fund organizations on both sides of an issue).
247. See Rosenberger, 515 U.S. at 833-34 ("When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee. It does not follow, however, . . . that viewpoint-based restrictions are proper when the University does not itself speak . .. ." (citation omitted)).
248. Locke v. Davey, 540 U.S. 712, 721 (2004).
249. Id. at 725.
250. Rust, 500 U.S. at 193. Credit for this insight belongs to Douglas Laycock.
251. See Laycock, supra note 14, at 176 ("With or without citation, Davey's paraphrase of Rust is unmistakable.").
252. See, e.g., Dorf, supra note 131, at 2055 (acknowledging critics' disagreement with Rust);
253. Greene, supra note 133, at 59 (same);
254. David A. Strauss, Principle and Its Perils, 64 U. CHI. L. REV. 373, 384 (1997)
255. (reviewing RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION (1996) ) (agreeing with Professor Dworkin that Rust was wrongly decided).
256. See supra Part I.A.
257. See infra Part III.A.
258. Rust, 500 U.S. at 194.
259. Funding speech and opening public property to speakers have been seen as analogous forms of government support. The Supreme Court, for instance, has treated the former as equivalent to a public forum. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 830 (1995) (finding that a funding scheme constitutes a forum "more in a metaphysical than in a spatial or geographic sense, but the same principles are applicable").
260. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 55 (1983) ("[O]n government property that has not been made a public forum, not all speech is equally situated, and the State may draw distinctions which relate to the special purpose for which the property is used.");
261. see also Volokh, supra note 6, at 1924, 1930-31 (providing several additional examples). Of course, this principle intersects with the much-criticized jurisprudence surrounding "designated public forums," "limited public forums," and "nonpublic forums"-terms that I avoid in order to circumvent debates that do not directly pertain to the argument here.
262. See Regan v. Taxation with Representation, 461 U.S. 540, 550-51 (1983) (holding that it was not irrational for Congress to choose to subsidize lobbying by veterans' groups, but not other charities).
263. Volokh, supra note 6, at 1925, 1931 (citing Cammarano v. United States, 358 U.S. 498, 513 (1959)).
264. Regan, 461 U.S. at 548.
265. Volokh, supra note 6, at 1925.
266. Paulsen, supra note 14, at 666 n.32;
267. Volokh, supra note 6, at 1930.
268. See United States v. Am. Library Ass'n, 539 U.S. 194, 201 (2003) (acknowledging diat congressionally mandated Internet filters for public libraries could permissibly block websites that are neither obscene nor pornographic);
269. see also Laycock, supra note 14, at 178 (citing American Library Ass'n).
270. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 795, 813 (1985). Interestingly here, a President may exclude such groups out of a policy desire to avoid any appearance of government "favoritism or entanglement" with regard to particular political positions.
271. Id. at 807. The President can do this even where the entanglement is not constitutionally prohibited, but just undesirable as a matter of wise governance. In much the same way, we might expect that the government would be able to seek special protection against the appearance of a religious establishment, over and above what is required by the First Amendment, by excluding religion from funding programs.
272. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828-32 (1995). Note that viewpoint discrimination is presumptively impermissible regardless of the type of forum established.
273. Id. at 829-30. Content discrimination, by contrast, is usually permitted in some types of fora, but remains suspect in others.
274. Id. Accordingly, a critical question is whether refusing to support all religious expression amounts to discrimination on the basis of content or viewpoint.
275. The rule against viewpoint discrimination seems less anomalous if it is compared not to excluding all religious practice from state aid, but instead only to excluding particular sects or denominations. That sort of exclusion is presumptively prohibited, even though it does not burden the excluded sects or denominations. See infra Part III.A.
276. Rosenberger, 515 U.S. at 845-46;
277. see also Good News Club v. Milford Cent. Sch., 533 U.S. 98, 107 (2001) (characterizing the selective exclusion of sectarian speakers from government property as viewpoint discrimination);
278. Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (same). In two other cases, the Court invalidated selective exclusions of sectarian speakers from government property, but without explicitly invoking the rule against viewpoint discrimination. Capitol Square Review 8c Advisory Bd. v. Pinette, 515 U.S. 753 (1995);
279. Widmar v. Vincent, 454 U.S. 263 (1981). These earlier cases - Widmar, Lamb's Chapel, and Pinette - all addressed the question of whether supporting sectarian speech was prohibited by the Establishment Clause. In each case, the government defended the exclusion at issue on the ground that it could not support religious expression without violating that Clause. Therefore, none of the cases addressed an exclusion of religion, as this Article is using that term, because none involved a policy decision to omit religious expression. Nevertheless, each case held not only that supporting religious speech was constitutionally permissible, but also that it was constitutionally required under the Speech Clause. So, regardless of their antiestablishment holdings, these cases stand for the independent proposition that excluding sectarian expression from a support program may violate free speech rules.
280. Rosenberger, 515 U.S. at 824.
281. Id. at 822.
282. Id. at 825.
283. Id. at 827.
284. Id. at 829-30.
285. See id. at 831 ("Religion may be a vast area of inquiry, but it also provides, as it did here, a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered. The prohibited perspective, not the general subject matter, resulted in the refusal to make third-party payments, for the subjects discussed were otherwise within the approved category of publications.").
286. Wide Awake could have continued to exist at the university and would still have had a right to use school facilities.
287. Id. at 823-24.
288. It could have relied on other revenue sources to print its publication. See id. at 826 (noting that Wide Awake included advertisements in its publication).
289. See supra Part I.A.
290. The university argued that the exclusion was necessary for compliance with the federal Establishment Clause, an argument that the Supreme Court rejected. See Rosenberger, 515 U.S. at 845-46.
291. Nevertheless, Virginia could have argued that it wished to pursue a stricter vision of antiestablishment man what is required by the federal Constitution. Apparendy the students originally raised such an argument, based on the Virginia Constitution, but dropped it on appeal. See id. at 827.
292. Allowing officials to excise religious speech from their programs may well lead to more government support for speech, not less. Faced with the choice between subsidizing all private speech within a certain category, including religious speech, or supporting no speech at all, some government actors at the margins will choose the latter. See, e.g., Berry v. Dep't of Soc. Servs., 447 F.3d 642, 646 n.1 (9th Cir. 2006) (setting forth a letter from a government administrator who decided to close an agency conference room to all private speech out of a concern that he would not be able to limit the types of expression allowed there). That result may unwisely avoid disparate treatment of religion at the cost of weakening state support for speech generally.
293. Rosenberger, 515 U.S. at 895-96 (Souter, J., dissenting).
294. See id. at 831 (acknowledging that "the distinction [between content and viewpoint discrimination] is not a precise one").
295. See id. at 825 (describing the ban on funding "political activities" by student organizations, a term that was understood to refer to electioneering and lobbying).
296. Id. at 829-30.
297. Id. at 831.
298. See Laycock, supra note 14, at 192 (noting that forum analysis is a "distraction" in the presence of viewpoint discrimination, which is presumptively prohibited regardless of the presence of a forum).
299. See Locke v. Davey, 540 U.S. 712, 720 n.3 (2004).
300. Cf. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 542 (2001) (striking down a restriction on law-reform suits in a congressional program that paid lawyers to represent indigent clients, even though no forum was created, although not explicidy calling the government's action viewpoint discrimination);
301. Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 587 (1998) (suggesting that viewpoint discrimination is impermissible in funding, even where no public forum exists);
302. Laycock, supra note 14, at 191-93 (critiquing the Davey Court's attempt to distinguish the public forum cases and noting that viewpoint discrimination is presumptively prohibited regardless of whether a forum has been created). Justice Scalia has suggested that viewpoint discrimination ought to be permitted in funding programs so long as the government has not created a public forum.
303. See Finley, 524 U.S. at 596-600 (Scalia, J., concurring in the judgment). Without taking a position on the viability of the distinction between viewpoint and content discrimination, or the distinction between public fora and other sorts of fora, this Article simply argues that excluding religious speech normally ought to be constitutionally permissible, except when religious speakers are barred from traditional public spaces and subject to the other limits set out in Part III.
304. See Laycock, supra note 14, at 194 (noting that "[t]he scholarships in Davey were available to all within a very broad category" and calling Davey an example of "funding (or permitting) nearly all speakers or messages within a broad category and excluding one or a few").
305. Current law sets out two rules: first, where the state speaks, it is permitted to choose only secular messages; second, where it supports a wide enough range of private utterances, it may not exclude religious viewpoints. Careful readers may have noticed that there is another set of cases in which the government does not itself speak but also does not subsidize a range of private communication, Instead, in these cases it seeks to fund only specific viewpoints. Neither Rosenberger nor Davey is such a case, since both involve state support of a range of private views, but it is nevertheless worth pausing to consider the matter. Imagine, for instance, that a state offered $1000 for the best essay celebrating American independence. That program did not support government speech, of course, and it also plainly discriminated on the basis of viewpoint against essays denigrating independence. Surely such a program would be constitutional despite that discrimination, Now imagine a similar contest that excluded religion by awarding money to the best essay celebrating American secularism. Again, the program would presumably be upheld, even though it involved discrimination against religious view-points. (I am grateful to Richard Primus for this hypothetical.) Aside from the rules already set out, the Court has offered little guidance in this area. It has held that the National Endowment for the Arts (NEA) may award grants to artists based not only on merit but also "taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public."
306. Finley, 524 U.S. at 572. Yet it did so only by saying that the NEA program did not necessarily involve viewpoint discrimination and did not create a public forum.
307. Id. at 582, 586. Importantly, the Court suggested that viewpoint discrimination would not have been allowed despite the fact that no forum had been created.
308. Id. at 587. Similarly, the Court has said that Congress may not pay lawyers to represent indigents and then restrict them from bringing law-reform suits.
309. Velazquez, 531 U.S. at 542. The government cannot elect to support normal professional advocacy and then place a distorting restriction on that speech.
310. Id. at 544. But while it analogized to Rosenberger, the Court stopped short of saying that Congress had supported a diversity of private views or discriminated on the basis of viewpoint.
311. Id. at 542. Until the Court says more, the best sense that can be made of these cases is that they describe a continuum of support and exclusion: as the range of private speech that the government is supporting becomes wider, and the focus of any exclusion becomes narrower, it will become more difficult for officials to base the exclusion on viewpoint.
312. Cf. Laycock, supra note 14, at 194. With respect to religious speech, the state may not subsidize a range of private expression and then omit religious perspectives, such as from traditional public places like streets and sidewalks. But where it narrowly funds secular speech, so that its program begins to resemble government speech, it may well be able to omit religious viewpoints, as in the essay contest hypothetical.
313. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 49 (1983).
314. See Bronx Household of Faith v. Bd. of Educ., 492 F.3d 89, 104-05 & n.8 (2d Cir. 2007) (Calabresi, J., concurring) (noting reasonable government justifications for excluding worship from a school after hours).
315. See, e.g., id. at 103 ("Worship is adoration, not ritual; and any other characterization of it is profoundly demeaning and false.... What the [Boy] Scouts are doing and what worshippers do, are categorically different!");
316. Bronx Household of Faith v. Cmty. Sch. Dist No. 10, 127 F.3d 207, 221 (2d Cir. 1997) (Cabranes, J., concurring in part and dissenting in part) ("[T] here is no real secular analogue to religious 'services'....").
317. Thanks to Ira C. Lupu for this insight.
318. Cf. Good News Club v. Milford Cent. Sch., 533 U.S. 98, 113 (2001) ("[I]t is not clear whether a State's interest in avoiding an Establishment Clause violation would justify viewpoint discrimination. We need not, however, confront the issue in this case...." (citation omitted)).
319. But see Bronx Household, 492 F.3d at 131 (Walker, J., dissenting) (rejecting the idea that excluding worship is required by the Establishment Clause).
320. See, e.g., Bronx Household, 492 F.3d at 92 (describing one such school policy).
321. See Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, 127 F.3d
322. An assumption here is that worship is inherently religious. In fact, if there were such a thing as secular worship, and if a policy were to exclude from government subsidization all worship - secular and religious - then that policy would not be an exclusion of religion, as I have been using that term, because it would not single out religious entities or practices for nonsupport. See Bronx Household, 492 F.3d at 104 ("If... we treat worship as something that can also be secular, then the... exclusion of religious... worship is clearly invalid."). Refusing to fund both religious and secular worship would of course gready strengthen any such program against constitutional challenge because it would not involve discrimination on the basis of belief. But because I find it highly unlikely as a practical matter that any government would deny support for both religious and secular worship, I do not pursue that possibility here.
323. Cf. Widmar v. Vincent, 454 U.S. 263, 276 (1981) (applying strict scrutiny to an exclusion of religious groups from a public forum);
324. id. at 269 n.6 (rejecting the distinction between worship and other forms of religious speech);
325. Bronx Household, 492 F.3d at 123-24 (Walker, J., dissenting) (arguing that the school board's exclusion of worship is "a form of invidious viewpoint discrimination").
326. For examples of cases in which schools violated religious groups' constitutional right of access in an unnecessary attempt to satisfy perceived Establishment Clause mandates, see Good News Club, 533 U.S. 98;
327. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995);
328. Lamb's Chapel v. Cent. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993).
329. Good News Club, 533 U.S. at 111. In Good News Club, the Court invalidated an exclusion of a group that used school property for live storytelling and prayer, even though these activities were " quintessentially religious," but without explicitly foreclosing the possibility that an exclusion of actual worship or religious services could survive a constitutional challenge.
330. See id. ("We disagree that something that is 'quintessentially religious' or 'decidedly religious in nature' cannot also be characterized properly as the teaching of morals and character development from a particular viewpoint.");
331. id. at 139 (Souter, J., dissenting) (noting that the majority could not have characterized the Good News Club's activities as worship, because "[otherwise... this case would stand for the remarkable proposition that any public school opened for civic meetings must be opened for use as a church, synagogue, or mosque").
332. See, e.g., Bronx Household, 492 F.3d at 103 (Calabresi, J., concurring) ("[H]olding that worship is only an agglomeration of rites would be a judicial finding on the nature of worship that would not only be grievously wrong, but also deeply insulting to persons of faith. As one such person, I find the notion that worship is the same as rituals and instruction to be completely at odds with my fundamental beliefs.... Worship is adoration, not ritual; and any other characterization of it is both profoundly demeaning and false.").
333. See Good News Club, 533 U.S. at 111 (characterizing the excluded activity as "the teaching of morals and character development from a [religious perspective]");
334. Lamb's Chapel, 508 U.S. at 393 (reasoning that the exclusion affected religious perspectives on family issues and childrearing).
335. Good News Club assessed facts that came closest to a pure exclusion of religion, but the Court there also specifically declined to decide whether a denial of access for worship itself would be constitutional.
336. See Good News Club, 533 U.S. at 112 n.4 (noting that the activities at issue in the case were not "mere religious worship, divorced from any teaching of moral values");
337. see also Bronx Household, 492 F.3d at 130 (Walker, J., dissenting) (voting to strike down an exclusion of worship from public property but recognizing that the Good News Club Court explicidy "declined to reach the question presented in this case," namely, whether excluding only worship itself offends the First Amendment).
338. See, e.g., Widmar v. Vincent, 454 U.S. 263, 269 n.6 (1981) ("It is highly doubtful that [the distinction between worship and other sorts of religious speech] would lie within the judicial competence to administer. Merely to draw the distinction would require the university - and ultimately the courts - to inquire into the significance of words and practices to different religious faiths, and in varying circumstances by the same faith. Such inquiries would tend inevitably to entangle the State with religion in a manner forbidden by our cases." (citation omitted));
339. Faith Ctr. Church Evangelistic Ministries v. Glover, 480 F.3d 891, 911 (9th Cir. 2007) (holding that it would not be proper for the court to distinguish between worship and other forms of religious speech, but nevertheless upholding an exclusion of worship on the ground that private religious groups themselves had differentiated between worship and their other activities), cert. denied, 128 U.S. 143 (2007).
340. See Bronx Household, 492 F.3d at 129-30 (Walker, J., dissenting) (noting that allowing officials to define worship would give them unduly wide latitude and that judges lack competence to offer a legal definition of the term).
341. Widmar, 454 U.S. at 269 n.6 (citing Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970)).
342. See Bronx Household, 492 F.3d at 103 (Calabresi, J., concurring).
343. See Good News Club, 533 U.S. at 139 (Souter, J., dissenting) (arguing that the majority was compelled to conclude that the activity at issue did not constitute a church service, for "[o]therwise... this case would stand for the remarkable proposition that any public school opened for civic meetings must be opened for use as a church, synagogue, or mosque").
344. Glover, 480 F.3d at 895-902 (Bybee, J., dissenting from denial of rehearing en banc).
345. Id. at 902.
346. Id. at 903.
347. Id.
348. Id. at 904.
349. Id. at 910.
350. See swpra note 190 and accompanying text.
351. Glover, 480 F.3d at 913 (quoting Good News Club, 533 U.S. at 112 n.4).
352. Id. at 898 (Bybee, J., dissenting from denial of rehearing en banc) (quoting Good News Club, 533 U.S. at 111);
353. see also Glover, 480 F.3d at 901 ("Here, the County has opened its library meeting rooms generally to community groups for a wide range of cultural and community activities; the distinction between 'mere religious worship' and other forms of religious speech is thus utterly irrelevant. Whatever 'mere religious worship' involves, it is both a cultural and a community activity and as such certainly constitutes an 'otherwise permissible subject[]' under the County's policy." (alteration and emphasis in original) (quoting Good News Club, 533 U.S. at 112)).
354. Compare Glover, 480 F.3d at 899 (Bybee, J., dissenting from denial of rehearing en banc) (noting that the distinction between worship and other types of religious speech "is not 'within the judicial competence to administer'" (quoting Widmar v. Vincent, 454 U.S. 263, 269 n.6 (1981))),
355. with Glover, 480 F.3d at 918 (majority opinion) (noting that the distinction between worship and "virtually all other forms of religious speech" is one that "courts are not competent to make," but that the Faith Center itself had drawn such a distinction in this case).
356. But see Widmar, 454 U.S. at 284-86 (White, J., dissenting) ("Although... the line may be difficult to draw in many cases, surely the majority cannot seriously suggest that no line may ever be drawn.").
357. Glover, 480 F.3d at 901.
358. Bronx Household of Faith v. Bd. of Educ., 331 F.3d 342, 348 (2d Cir. 2003) (emphasis added).
359. Id. at 347.
360. Id. at 354. The Second Circuit had previously upheld a similar policy against a challenge by the same religious organization.
361. See Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, 127 F.3d 207, 214-15 (2d Cir. 1997). In 2003, the court instead upheld the policy on the ground that the Supreme Court's intervening decision in Good News Club had effectively overturned its previous ruling.
362. Bronx Household, 331 F.3d at 355.
363. The Ninth Circuit tried to distinguish Bronx Household on the ground that the religious practices there had involved a blend of worship and moral instruction, whereas the Faith Center had engaged in pure worship. Glover, 480 F.3d at 916. My sense is that this is a difficult line to defend because a great deal of worship includes activities with secular analogues, such as instruction in morality.
364. Bronx Household, 331 F.3d at 355.
365. Bronx Household of Faith v. Bd. of Educ., 492 F.3d 89, 92, 94 (2d Cir. 2007) (Calabresi, J., concurring).
366. Id. at 103.
367. See id. (quoting the testimony of Rev. Robert Hall, pastor of Bronx Household Community of Faith);
368. see also id. at 101 ("In applying for a permit to use school facilities, Bronx Household's pastor described the proposed activities with three words: 'Christian worship service.'").
369. Id. at 126 (Walker, J., dissenting).
370. See id. at 126-27 ("The Board's avowed purpose in enforcing the regulation in this case, and its long-standing hostility to religious groups, leads ineluctably to the conclusion that the Board, in fact, has undertaken to exclude a particular viewpoint from its property." (citation omitted)).
371. Id. at 129, 131.
372. Id. at 91 (Leval, J., concurring).
373. For arguments against judicial balancing in the free exercise context, see Justice Scalia's majority opinion in Employment Division v. Smith, 494 U.S. 872, 882-90 (1990), in which he argues that personal religious belief is inherently incompatible with a balancing test.
374. See Larson v. Valente, 456 U.S. 228, 244, 246 (1982) ("The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.");
375. see also Hernandez v. Comm'r, 490 U.S. 680, 695 (1989) (suggesting that policies that "facially differentiate[] among religions" are presumptively unconstitutional);
376. Torcaso v. Watkins, 367 U.S. 488, 495 (1961) (disapproving differential treatment of theistic and nontheistic religions). One reading of a famous passage from Everson v. Board of Education supports the proposition that the government may not discriminate among religious groups, even in funding: New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequendy, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.
377. U.S. 1, 16 (1947) (emphasis omitted). That same passage has been cited by Justice Scalia for a broader proposition, namely that believers generally cannot be excluded from a state funding scheme.
378. See Locke v. Davey, 540 U.S. 712, 726-27 (2004) (Scalia, J., dissenting). Regardless of whether that broader reading is correct, there is little doubt that, at a minimum, the Everson Court would have disallowed denominational preferentialism in funding.
379. Nonpreferentialism has deep historical roots. At least some state constitutions have included prohibitions on laws that discriminated or imposed penalties on the basis of religious differences. See Hamburger, supra note 99, at 851 (noting the existence of such provisions in previous versions of the New York and Massachusetts Constitutions). The federal Free Exercise Clause was also likely understood as guaranteeing freedom from discrimination or penalty, though it may also have prohibited discrimination on the basis of religion generally.
380. Id. at 855 n.61.
381. See, e.g., Eisgruber & Sager, supra note 33, at 601 (endorsing an equal citizenship component of religious liberty).
382. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 535 (1993).
383. 456 U.S. 228, 244 (1982);
384. see also Bd. of Educ. v. Grumet, 512 U.S. 687, 696 (1994) (noting that the Establishment Clause prohibits the government from "favoring .., one religion over others").
385. See Davey, 540 U.S. at 720-25 (finding that Davey had not been severely restricted in the observance of his faith).
386. Colo. Christian Univ. v. Baker, No. 04-2512, 2007 WL 1489801, at *1 (D. Colo. May 18, 2007).
387. Id. at *13. Of course, the exclusion could instead be understood simply as a refusal to fund education that would be unavoidably religious, regardless of denomination.
388. Following Larson, the court applied strict scrutiny to the claim of religious preferentialism.
389. See id. ("Colorado's tuition assistance programs similarly [i.e., like the program in Larson] differentiate among sectarian institutions.... In such situations, Larson directs that the Court analyze CCU's Establishment Clause claim by applying the strict scrutiny test"). Nevertheless, the court found that Colorado had a compelling interest under the Colorado constitution in not aiding pervasively religious institutions.
390. Id. at *14.
391. See supra Part II.A.
392. See County of Allegheny v. ACLU, 492 U.S. 573, 620-21 (1989) (allowing the city to display a Christmas tree and Chanukah menorah).
393. Cf. Summum v. Pleasant Grove City, 483 F.3d 1044, 1052-55 (10th Cir. 2007) (holding that a city that allowed a private group to display the Ten Commandments in a city park could not exclude display of the symbols of a minority religion-albeit arriving at that result using forum analysis under the Speech Clause), cert. granted, 76 U.S.L.W. 3562 (U.S. Mar. 31, 2008) (No. 07-665).
394. 437 F.3d 1 (2d Cir. 2006).
395. Id. at 32.
396. Cf. id. at 52 (Straub, J., concurring in part and dissenting in part) ("[T]he reasonable parent observer would understand the inclusion of religious symbols of the Jewish holiday of Chanukah and the Muslim commemoration of Ramadan, and exclusion of any religious symbols of the Christian holiday of Christmas, to convey the State's approval of Judaism and Islam and disapproval of Christianity. The touchstone of the Establishment Clause, its principle of neutrality, forbids such favoritism.").
397. See Laycock, supra note 14, at 175 ("The Court... says that the government cannot respond to an exercise of a constitutional right by withholding money for other activities eligible for government funding....");
398. Volokh, supra note 6, at 1942 ("The Court has routinely distinguished limits on how government assets are used from limits on... what other behavior the user engages in with its own assets .... Thus, the government may choose not to subsidize abortions, but it may not deny food stamps to all women who have had abortions....").
399. Nor may a state withhold all benefits to broadcasters that engage in editorializing. See FCC v. League of Women Voters, 468 U.S. 364, 402 (1984).
400. Compare Cammarano v. United States, 358 U.S. 498, 513 (1959) (disallowing tax deductions on lobbying as a business expense), with Regan v. Taxation with Representation, 461 U.S. 540, 551 (1983) (allowing Congress to require nonprofit organizations to separate out unfunded lobbying activities from other supported activities).
401. Cf. Locke v. Davey, 540 U.S. 712, 734 (2004) (Scalia, J., dissenting) (offering a similar hypothetical);
402. Maher v. Roe, 432 U.S. 464, 474 n.8 (1977) ("If Connecticut denied general welfare benefits to all women who had obtained abortions,... strict scrutiny might be appropriate....").
403. Here I agree with Judge McConnell's argument against the constitutionality of denying grants for the provision of secular public services to organizations simply because they also pursue religious activities. See McConnell, supra note 18, at 1027-28 ("[T]he suggestion that religious organizations must categorically be barred from participation in all government-funded programs must be rejected.... [D]enying federal money for activities that would otherwise be funded would amount to a substantial penalty for exercising one's constitutional rights.").
404. The Court recognized the latter right in Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925).
405. McConnell, supra note 18, at 1017-19.
406. Id. at 1018.
407. Id.
408. Id. at 1018, 1047. Professor Laycock has recently endorsed much the same view.
409. See Laycock, supra note 14, at 187 ("Refusing state funding for math and reading, because the school also teaches religion, is clearly a penalty on teaching religion and on attending a school that does so. If religious liberty consists of minimizing government influence on religious choices, such a penalty restricts religious liberty."). (As I will explain, however, Laycock realizes that Davey poses a significant obstacle to this view of secular-only voucher programs.) And Professor Paulsen likewise seems to suggest that not allowing religious schools to participate in a voucher program would constitute an unconstitutional condition.
410. See Paulsen, supra note 14, at 667, 710-17.
411. 468 U.S. 364, 402 (1984).
412. Id.
413. See Laycock, supranote 14, at 179-81 (discussing the divisibility of federal funds in League of Women Voters and Davey);
414. McConnell, supra note 18, at 1017-19.
415. See Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373, 379 (1985) (noting the position of certain religious schools that "it is not sufficient that the teachings of Christianity be a separate subject in the curriculum, but the Word of God must be an all-pervading force in the educational program" (emphasis omitted)), overruled by Agostini v. Felton, 521 U.S. 203, 236 (1997);
416. McConnell, supranote 18, at 1019 ("[O]ne of the key purposes of religious primary and secondary schools is integrating religion into the regular curriculum.").
417. See Laycock, supranote 14, at 180 ("[Davey] was indeed required to choose between his religious beliefs and a government benefit for his secular courses.").
418. Locke v. Davey, 540 U.S. 712, 720-21 (2004).
419. See id. at 721 n.4 ("Promise Scholars may still use their scholarship to pursue a secular degree at a different institution from where they are studying devotional theology.").
420. FCC v. League of Women Voters, 468 U.S. 364, 402 (1984).
421. Regan v. Taxation with Representation, 461 U.S. 540, 551 (1983).
422. Laycock, supranote 14, at 180-81.
423. Davey, 540 U.S. at 721. Laycock agrees, albeit in protest, that this is so under current law: "Rust and Davey mean that if you take money from the government, the government acquires full power to prohibit any other activity, including the exercise of constitutional rights, performed by subsidized staff or conducted on the property where the government money is spent."
424. Laycock, supra note 14, at 197.
425. Anderson v. Town of Durham, 895 A.2d 944, 959 (Me. 2006) (quoting Eulitt ex rel Eulitt v. Me. Dep't of Educ., 386 F.3d 344, 355 (1st Cir. 2004)).
426. See supra text accompanying note 4.
427. Cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993) ("[T]he minimum requirement of neutrality is that a law not discriminate on its face.").
428. The Court uses the terms "animus" and "hostility" interchangeably. This Article limits itself to the word "animus."
429. See Locke v. Davey, 540 U.S. 712, 724 (2004) ("Far from evincing the hostility toward religion which was manifest in Lukumi, we believe that the entirety of the Promise Scholarship Program goes a long way toward including religion in its benefits.");
430. id. at 725 ("[W]e find neither in the history or text of... the Washington Constitution, nor in the operation of the Promise Scholarship Program, anything that suggests animus toward religion.").
431. See id. at 722 ("Even though the differently worded Washington Constitution draws a more stringent, line than that drawn by the United States Constitution, the interest it seeks to further is scarcely novel. In fact, we can think of few areas in which a State's antiestablishment interests come more into play.").
432. In a footnote, the Court said explicitly that it has "sometimes characterized the Establishment Clause as prohibiting the State from disapproving of a particular religion or of religion in general." Id. at 725 n.10 (internal quotation marks and alterations omitted). At least one prominent commentator has subsequently suggested that animus against religious people or practices is now not only sufficient to show a free exercise violation, as this Article suggests, but also necessary-and not only with respect to funding, but in other contexts as well.
433. See Hamilton, supra note 66, at 1101 (arguing that the Court usually "requir[es] obedience to legislative determinations of the public good, unless there is evidence of animus or hostility towards religion").
434. The Davey Court suggested that Lukumi involved an instance of animus, but in that case the government singled out a particular sect, not religion as a whole, for burdensome regulation.
435. See Davey, 540 U.S. at 724-25.
436. Scholars have suggested, for instance, that it will be difficult to show that a funding denial is connected to a state's Blaine amendment, even if that state constitutional provision was originally enacted out of anti-Catholic sentiment. Lawmakers can easily paper over an impermissible motive by articulating an acceptable rationale for a religious classification. And the Davey court itself refused to recognize any connection between Washington's Blaine Amendment and the funding exclusion in the Promise Scholarship program. See Laycock, supra note 14, at 187-88 (discussing Davey, 540 U.S. at 723).
437. Cf. Romer v. Evans, 517 U.S. 620, 644 (1996) (Scalia, J., dissenting) ("Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible-murder, for example, or polygamy, or cruelty to animals-and could exhibit even 'animus' toward such conduct").
438. For instance, this Article avoids the civic republicanism that sometimes bolsters anti-animus proposals in the religion context and elsewhere. See, e.g., Hamilton, supra note 66, at 1101 ("[P]rinciples of republicanism have informed the Supreme Court's Religion Clause jurisprudence...." (footnote omitted));
439. Cass R. Sunstein, Naked Preferences and the Constitution, 84 COLUM. L. REV. 1689, 1690-91 (1984) (describing the general antipathy of republicanism toward laws that target politically unpopular groups).
440. Here I agree generally with McConnell, supra note 18, at 1046-47, though he treats hostility toward religion as simply a type of government reason that cannot overcome a presumption that a selective defunding of religion is unconstitutional.
441. Cf. Christopher L. Eisgruber & Lawrence G. Sager, Equal Regard, in LAW & RELIGION: A CRITICAL ANTHOLOGY 200, 203-04 (Stephen M. Feldman ed., 2000) (describing the belief that "one's status as a member of our political community ought not to depend in anyway upon one's religious beliefs"). Because of the distinctive place of religion in our constitutional tradition, this Article does not rely on the general rule against animus in equal protection law.
442. See Romer, 517 U.S. at 634-36; City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 44647 (1985). Principles of religious freedom provide more specific guidance, making reference to general equal protection concepts unnecessary.
443. FELDMAN, supra note 7, at 6.
444. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 544 (2001);
445. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46, 48-49 (1983).
446. This qualification was noted above in Part I.A.
447. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833-34 (1995).
448. As Justice Scalia has noted, It is the very business of government to favor and disfavor points of view on (in modern times, at least) innumerable subjects.... And it makes not a bit of difference, insofar as either common sense or the Constitution is concerned, whether these officials further their (and, in a democracy, our) favored point of view by achieving it directly (having government-employed artists paint pictures, for example, or government-employed doctors perform abortions); or by advocating it officially...; or by giving money to others who achieve or advocate it.... None of this has anything to do with abridging anyone's speech. Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 598 (1998) (Scalia, J., concurring in the judgment). Justice Scalia goes on to concede that the government cannot skew viewpoints in a limited public forum. Id. at 598-99. But he is right to say that, under current law, government retains a great deal of ability to promote the views it favors.
449. Id. at 598.
450. See supra Part II.A.
451. Rationales for the ban on viewpoint discrimination in funding are not clear to everyone. See, e.g., Finley, 524 U.S. at 597-98 (Scalia, J., concurring in the judgment) (questioning the rationale for prohibiting viewpoint discrimination in funding). If the government may subsidize one constitutionally protected activity without funding an alternate and equally protected course of action, why must it fund expression equally? A deeper theory of the difference between freedom of speech and other liberty-based rights is necessary to account for this difference. This Article simply takes this long-standing distinction as a given.
452. See, e.g., Rosenberger, 515 U.S. at 845-46.
453. Locke v. Davey, 540 U.S. 712, 720 n.3 (2004).
454. Laycock, supranote 14, at 191.
455. See supra note 154 and accompanying text. A clear distinction persists, in this otherwise muddy area, between government speech and government facilitation of a range of private expression. Regardless of whether Washington's program created a forum in Davey, it certainly encouraged a diversity of private communications, and that presumptively precluded it from discriminating on the basis of viewpoint, even in funding.
456. See Laycock, supra note 14, at 192 ("[F]orum analysis [in Davey] was a distraction, because Davey showed viewpoint discrimination.");
457. id. at 194 ("The scholarships in Davey were available to all within a very broad category....").
458. See Perry Educ Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983) ("For the state to enforce a content-based exclusion [from a quintessential public forum,] it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end."). This presumptive ban on content discrimination applies regardless of whether the public forum is traditional or designated.
459. Id. at 45-46;
460. see also Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995) (closely scrutinizing an exclusion of religious speech from a traditional public forum without characterizing the exclusion as viewpoint discrimination).
461. See Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 806 (1985) ("Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.");
462. Perry, 460 U.S. at 46 ("[T]he State may reserve [a nonpublic] forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.").
463. Summum v. Pleasant Grove City, 483 F.3d 1044, 1052-55 (10th Cir. 2007), cert. granted, 76 U.S.L.W. 3562 (U.S. Mar. 31, 2008) (No. 07-665).
464. Id. at 1047;
465. see also id. at 1047 n.2 (characterizing the Ten Commandments monument as private speech).
466. Id. (internal quotation marks and footnote omitted).
467. See id. at 1050 ("Because the park is a public forum, the city's restrictions on speech are subject to strict scrutiny.");
468. id. at 1055 (finding that the restriction would likely be held unconstitutional).
469. Summum v. Pleasant Grove City, 499 F.3d 1170, 1175-76 (10th Cir. 2007) (McConnell, J., dissenting from denial of rehearing en banc).
470. See McConnell, supra note 18, at 1035 (noting that Roe v. Wade seemed to rest on the view that the government lacked authority to favor claims of conscience, while Meyer v. Nebraska relied on the view that the government could favor certain value judgments over others but was limited in its ability to use coercive means to enforce them).
471. For a thoughtful discussion of related questions, see Richard W. Garnett, Assimilation, Toleration, and the State's Interest in the Development of Religious Doctrine, 51 UCLA L. REV. 1645, 1693-1700 (2004).
472. See Laycock, supra note 14, at 159-61 (arguing that the neutrality principle favors theology scholarships but opposes the use of "under God" in the Pledge of Allegiance);
473. McConnell, supra note 18, at 1003-05 (applying that theory to the examples of abortion and religious education);
474. see also id. at 994 ("The theory underlying both Roe and the free exercise clause is that the best solution to the dissension [in value-laden matters] is to 'privatize' the decision ....").
475. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1995) (citing Rust v. Sullivan, 500 U.S. 173 (1991)).
476. See Marsh v. Chambers, 463 U.S. 783, 792 (1983) (holding that legislative prayer was not an establishment of religion but "simply a tolerable acknowledgement of beliefs widely held among the people of this country").
477. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 17-18 (2004) (dismissing a challenge to the Pledge without reaching the merits).
478. See, e.g., McCreary County v. ACLU of Ky., 545 U.S. 844, 875 (2005) ("[T]he principle of neutrality has provided a good sense of direction: the government may not favor ... religion over irreligion ....").
479. See id. at 889 (Scalia, J., dissenting) ("[H]ow can the Court possibly assert that the First Amendment mandates governmental neutrality between religion and nonreligion, and that manifesting a purpose to favor adherence to religion generally is unconstitutional?" (citations, internal quotation marks, and alterations omitted)).
480. Recall that the Court has held that religious expression may constitute a distinct viewpoint. Rosenberger, 515 U.S. at 831.
481. See supra Part III.A.
482. McCreary, 545 U.S. at 875;
483. see also id. at 884 (O'Connor, J., concurring) ("[The Framers] may not have foreseen the variety of religions for which this Nation would eventually provide a home.... But they did know that line-drawing between religions is an enterprise that, once begun, has no logical stopping point").
484. As Justice Scalia noted in his McCreary dissent, [T]oday's opinion suggests that ... government cannot favor one religion over another. That is indeed a valid principle where public aid or assistance to religion is concerned, or where the free exercise of religion is at issue, but it necessarily applies in a more limited sense to public acknowledgment of the Creator. .If religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all.... With respect to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.
485. Id. at 893 (Scalia, J., dissenting).
486. According to this reasoning, which relies heavily on practices at the time of the founding, it might also be possible to exclude non-Christian monotheisms - such as Judaism and Islam - from government speech. See Van Orden v. Perry, 545 U.S. 677, 728-29 (2005) (Stevens, J., dissenting) (arguing that Justice Scalia's reasoning would allow the government to exclude Judaism and Islam from its messages).
487. Justice Scalia espoused this view in McCreary: Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God. Both practices are recognized across such a broad and diverse range of the population - from Christians to Muslims - that they cannot be reasonably understood as a government endorsement of a particular religious viewpoint.
488. U.S. at 894 (Scalia, J., dissenting).
489. Gonzales v. Carhart, 127 S. Ct. 1610, 1626-27 (2007).
490. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943);
491. see also McConnell, supra note 18, at 1036
492. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (striking down a law prohibiting animal sacrifice).
493. See id. at 532 ("At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons." (emphasis added)).
494. See McConnell, supra note 18, at 1004 ("Paying for secular schools without paying for religious schools creates a clear incentive to forgo religious education.");
495. id. at 994 (drawing a parallel between individual religious autonomy and the rights to choice recognized in Roe and Pierce);
496. see also Laycock, supra note 14, at 160 ("[G]overnment should minimize the extent to which it either encourages or discourages religious belief ...." (internal quotation marks omitted)).