Rick Garnett: The Name Sounds Familiar

'Excluding Religion': A Response

Richard W. Garnett
Notre Dame Law School

University of Pennsylvania Law Review PENNUMBRA, Forthcoming
Notre Dame Legal Studies Paper No. 08-35

Abstract:     
In a thorough and thoughtful article, Excluding Religion, Prof. Nelson Tebbe asks "whether the government may select religious entities for exclusion from its support programs?" and concludes that, sometimes, it may. "The government," he contends, "need not remain neutral toward religion in its support programs[.]"

In this short response to Tebbe's paper, I first suggest that the reasons Tebbe offers for such exclusion - including "promoting equal citizenship for members of minority faiths . . . , fostering community concord, [and] respecting taxpayers' freedom of conscience", are not particularly strong. Next, I turn to the various "limits" that Tebbe imposes on his permissible-exclusion claim, and attempt to show that, in fact, these limits fit uneasily with the claim they constrain. The aim of this attempt is not to cheer state efforts to - in Tebbe's words - "shape the content of citizens' beliefs through government speech and other means," but instead to warn that the inevitability of such efforts poses a real threat to religious freedom, one that is not likely to be repelled with assurances that the state must act nonpreferentially, or must act with a secular purpose, or must not make theological judgments. If we believe, as Tebbe and I do, that there should be limits on the power, and on the ambition, of governments when it comes to the content of citizens' commitments and the objects of their loyalty, it is essential that we think hard not only about the location of these limits, but also about the reasons for them and the worth of what it is that they protect.

[To download the paper, click here.]