Excluding religion.

• Author: Tebbe, Nelson

This Article considers whether the government may single out religious actors and entities for exclusion from its support programs. The problem of selective exclusion has recently sparked interest in lower courts and in informal discussions among scholars, but the literature has not kept pace. Excluding Religion argues that the government generally ought to be able to select religious actors and entities for omission from support without offending the Constitution. At the same time, the Article carefully circumscribes that power by delineating several limits. It concludes by drawing out some implications for the question of whether and how a constitutional democracy ought to be able to influence private choices concerning matters of conscience.

INTRODUCTION I. EXCLUDING RELIGIOUS PRACTICE A. The Basic Argument B. Other Rights C. Examples D. Objections 1. Discrimination on the Basis of Religion 2. Noninterference with Private Choice 3. RFRA II. EXCLUDING RELIGIOUS SPEECH A. Government Speech B. Private Speech C. Excluding Worship 1. The Case for Allowing Exclusions of Worship 2. Lower Court Debates III. LIMITS A. Nonpreferentialism 1. In Funding 2. In Speech B. Unconstitutional Conditions C. Animus D. Viewpoint Discrimination E. Restricting a Traditional Public Forum CONCLUSION INTRODUCTION

May the government single out religious actors for exclusion from its support programs? For example, could a state establish a voucher program that funded all public and private schools other than religious ones? (1) Or would it be permissible for a board of education to display only secular holiday symbols in schools? (2) Could a town open its library facilities for use by all community groups except those that conduct worship services? (3) Such questions have recently sparked interest in court opinions and in informal discussions among scholars. This Article attempts to answer them as a matter of constitutional law.

Questions like these may be framing a new paradigm in the law of religious freedom. Two other problems have traditionally occupied courts and commentators. First has been the issue of whether and how the state can regulate religious practices despite the Free Exercise Clause. Virtually everyone has agreed that the government cannot single out particular religious groups for special regulation except in extraordinary circumstances. The dispute has been whether or not it can enforce general laws that do not purposefully discriminate on the basis of religion but that nevertheless have the effect of burdening observance.

A second problem has concerned whether the government can support religious groups in keeping with antiestablishment principles. Familiar disagreements have involved state aid to religious schools, displays of holiday symbols on town property, and inclusion of the words "under God" in the Pledge of Allegiance. Together these two paradigms continue to describe many cases at the intersection of religion and government.

Now, however, a different issue has moved into the foreground: whether the government may select religious entities for exclusion from its support programs. One way of thinking about this matter-the problem of excluding religion--is that it shifts attention from the question of whether the government may fund religion to whether it must do so once it elects to support comparable secular activities. (4) Previously, officials were required to exclude sectarian activities and institutions from subsidies in order to comply with federal antiestablishment rules) Today, lawmakers might decide to support only secular practices as a matter of policy. (6) Whether they are permitted to do so is an incipient constitutional issue.

Why has this third problem become important only recently? Doubtless the causes are multiple, but one important factor must be the contemporary turnabout in antiestablishment law. During the last decade or so, the Supreme Court has shifted course and allowed new forms of state aid to flow to religious organizations. (7) Consider two examples of this phenomenon. First, the Court has approved school voucher programs that include religious educational institutions. (8) That rule permits indirect aid, meaning funding that flows to religious entities only via the genuinely independent choice of private individuals. Second, the Court now also allows some direct aid. Two decisions have permitted Congress to directly subsidize religious and nonreligious schools in certain ways, (9) and both required the Court to overrule more restrictive precedents. (10) So with respect to important forms of government funding, both indirect and direct, excluding religion may have shifted from a constitutional mandate to a policy option. Put in terms of a common metaphor, the gap has widened between the Free Exercise and Establishment Clauses, giving public officials greater discretion over whether to support observance. Lawmakers must now confront the question of whether it is a good idea to fund religion in these newly permissible ways. (11)

At the moment, Supreme Court doctrine in this area is inconsistent. First, in Rosenberger v. Rector & Visitors of University of Virginia, the Court held that a public university could not elect to fund all student publications without also funding religious ones. (12) But in Locke v. Davey, the Court's latest free exercise decision, the Justices approved a college scholarship program for all top students except those majoring in devotional theology. (13) Although these two decisions may appear to address different areas of law--free speech and free exercise, respectively--they actually stand in tension with one another: one permitted an exclusion of religion, and the other did not. (14)

This Article argues that the state generally ought to be allowed considerable latitude to exclude religious activities and actors from its support, at least as a constitutional matter. The government need not remain neutral toward religion in its support programs; it may instead sometimes fund one activity rather than another, even when doing so may skew private incentives toward nonreligious activities and messages, so long as it observes certain limitations that this Article will carefully delineate.

This is so partly because free exercise is best conceptualized primarily (though not exclusively) as a right to liberty or autonomy that, like other such rights, may be selectively funded without burdening its exercise and triggering constitutional objections. (15) Elsewhere in constitutional law, particularly in the areas of speech and privacy, officials are permitted to subsidize the exercise of certain rights without aiding others. (16) They may do so even though selective support may have the effect of influencing private choices. To the degree that religious liberty is analogous to those other rights, doctrine surrounding them lends support to the constitutionality of excluding religion.

Partly, too, allowing exclusions of religion is attractive because of considerations that are specific to religious freedom. A legislature might decline to facilitate religion for good reasons, such as promoting equal citizenship for members of minority faiths (or no faith at all), fostering community concord, or respecting taxpayers' freedom of conscience. (17) Each of these three purposes arguably promotes an Establishment Clause value. Antiestablishment theory, in other words, provides justifications for permitting exclusions of religion even where it does not provide rationales for requiring them. The government may exclude religion in order to pursue a stricter vision of antiestablishment than the First Amendment requires, at least within certain limits.

Although some readers will find this Article's argument intuitive, others are likely to resist its position. Few leading scholars have addressed the issue so far, but those who have done so generally have voiced serious constitutional concerns with unequal funding of observance. (18) Whereas the government once was constitutionally required to exclude religion from various types of support because of antiestablishment rules, these writers think that today it ought to be constrained in the other direction--the state should be prohibited by free exercise and free speech principles from differentiating on the basis of religion and influencing private decisions concerning matters of conscience. They see a constitutional obligation to treat religious groups and practices evenhandedly, even with respect to funding. So far, the literature has not provided a fulsome response.

Part I sets out the basic argument with respect to religious practices. To simplify for a moment, the government may decide which activities and institutions it wishes to facilitate, even if that means selecting out religious ones. A critical distinction separates differentiation in regulation, which is often subject to close judicial scrutiny, from differentiation in support, which remains largely within the discretion of the democratic branches. Again, that is true both because religious liberty should be conceptualized largely as a right to liberty or autonomy that need not be equally funded to be protected, and also because of religion-specific antiestablishment rationales. Contemporary conditions of pervasive welfare-state programming certainly do weaken the arguments for excluding religion in certain contexts, but the resulting exceptions are narrower than some have suggested.

Part II extends the argument to state support of religious speech. (19) Here, too, the government generally can excise religious messages from its own communications. It may decide, for instance, to display only secular holiday symbols without also showing menorahs or creches. More difficult to defend is the exclusion of sacred messages from programs that support a range of private views. (20) Although this Article argues that Rosenberger is mistaken, it contends that even...