Excluding Religion, by Nelson Tebbe, addresses the increasingly important First Amendment question whether government programs that support or benefit private activity may exclude religious activities or institutions. The question whether such exclusions are permissible has emerged as the Supreme Court has increasingly held, most recently on school vouchers, that exclusion is not constitutionally required. Since then, the Court has ruled, in Locke v. Davey, that a state could exclude theology majors from a broadly available college-scholarship program. Tebbe generalizes Davey’s holding, arguing that government should have “considerable latitude to exclude religious activities and actors from its support” and “need not remain neutral toward religion in [such] programs.” The state may fund education or drug rehabilitation by private institutions but withdraw funding when those activities include religious content.

Tebbe accepts that excluding religion “may skew private incentives toward nonreligious activities and messages.” He therefore rejects the theory, advocated by several scholars (myself included), that the Free Exercise and Establishment Clauses together require government to minimize the effect it has on the choices of private individuals and groups in matters of religion. Instead Tebbe sees religious freedom “primarily as a right to liberty or autonomy that is not ordinarily burdened by a governmental decision to selectively deny aid in a way that disincentivizes observance.” He enunciates several exceptions—exclusions of religion may not discriminate among sects, extend to separate non-funded entities, rest on animus toward religion, discriminate by viewpoint in certain public fora, or bar religion from traditional public fora —but he cabins each of these fairly strictly.