Disputes concerning exclusions of religion have continued to flare up during the last year. A school district in New Jersey was sued for prohibiting devotional religious music in its holiday programs, and six Virginia State Police troopers resigned their voluntary positions as chaplains after the state disallowed denominational prayers at the department's public events. Sometimes, the results of these disputes seemed to be in tension with one another, at least on the surface. While a city was permitted to exclude sectarian legislative prayers, a state was prohibited from limiting a scholarship program to colleges that were not pervasively sectarian. And while one local legislature could restrict opening invocations to monotheistic religions, another was constitutionally barred from allowing only clergy from certain denominations to offer prayers. Although the proper outcomes of these disputes may be unclear, it is beyond doubt that the problem of excluding religion continues to trouble constitutional decision makers.

Excluding religion is the practice of singling out religious actors or entities for special denial of government aid or support. Until not too long ago, many exclusions of religion were required by the Establishment Clause. Over the past decade or so, however, the Supreme Court's antiestablishment jurisprudence has shifted so that today more forms of government support for religious practice are constitutionally permitted. That shift has increasingly presented federal and state governments with the question of whether their support programs ought to include religious practices and institutions, not because of any legal requirement, but simply as a matter of policy. Some have chosen not to extend such support to religious actors on equal terms. Consequently, a distinct legal question has become newly prominent: now that governments are permitted to include sectarian groups in certain support programs, are they constitutionally required to do so?