Comment on Nelson Tebbe on Exclusions of Religion from Government Aid Programs

I've posted a short paper on SSRN that will appear soon in the University of Pennsylvania Law Review's online format PENNumbra.  It's a comment on a longer piece by Nelson Tebbe (Brooklyn Law School).  Here is the abstract:

Among the most important recent questions under the Religion Clauses has been whether and when government programs that support private activities, such as education or social services, may exclude religious institutions or activities that include religious content. Nelson Tebbe's article, Excluding Religion, argues that government should have "considerable latitude" to make such exclusions, even though he concedes they will discourage citizens from choosing religious options. In this response, published in PENNumbra (the University of Pennsylvania Law Review's online companion), I argue that Tebbe's justifications for excluding religion fail if the protection of citizens' religious choices against government influence is a central purpose of the Religion Clauses. I then turn to the key question whether preserving religious choice is indeed central, and I argue that it is, based on precedent, on traditions and concepts associated with the Religion Clauses, and on the fact that they are counter-majoritarian while Tebbe's position gives majorities great discretion over religious matters.