Professor Nelson Tebbe’s article, Excluding Religion, is a thorough and thoughtful examination by a first-rate young scholar of important and difficult questions: “[W]hether the government may select religious entities for exclusion from its support programs”? If so, when and why? Does such exclusion run afoul of the rule that “government cannot single out particular religious groups for special regulation”? Does it conflict with the equal-treatment and “neutrality” themes that run through many of the Court’s recent First Amendment decisions? Or, do “antiestablishment principles” sometimes permit (even if they do not require) governments to refuse to support religious groups, expression, activities, or symbols? If the answer to this last question is “yes”—and, in Tebbe’s view, it is —then what are the implications of this conclusion for the broader (and alliterative) “question of constitutional theory, namely whether and how it is appropriate for a democracy to influence citizen choice concerning commitments of conscience”?

Excluding Religion should be read by everyone involved or interested in the scholarly conversation about religion, the Constitution, and liberal democracy. The arguments are carefully developed and well executed. Tebbe’s achievement is all the more impressive given that, as he observes, the relevant doctrine is “inconsistent,” the leading precedents certainly seem to “stand in tension with one another,” and the cases under consideration often involve competing values. Tebbe engages—in a careful, sensitive, and provocative way—the premises that underlie, and the aspirations that animate, our commitment to religious freedom under law. This response will reveal some doubts and reservations, but it is nevertheless an appreciation.