Legal Commentary

Should government be able to specifically exclude religious actors and entities from its support programs?  I have argued that, to a greater degree than is commonly supposed, officials ought to have constitutional latitude to decline to support religion, even when they fund comparable activities.  At the same time, I have identified a discrete set of constitutional limits that ought to continue to constrain that practice.

After the piece came out, the University of Pennsylvania Law Review asked three prominent scholars to engage the argument, namely Steve Smith, Tom Berg, and Prawfs? own Rick Garnett.  The result was a set of extraordinarily thoughtful responses that appeared on the Penn Law Review?s online publication, PENNumbra.  Readers may have heard about these here at Prawfs as well as at Mirror of Justice.  Most recently, the Penn editors graciously allowed me to write a short reply, which also appeared on PENNumbra.  There, I accept Rick Garnett?s invitation to say a few words about the implications of excluding religion for political theory, and then I argue that the core argument of the original piece emerges from the conversation relatively intact.  Drawing on recent examples, I also show that the question of whether excluding religion ought to be constitutionally permissible remains a live issue that the Supreme Court may find it necessary to address before too long.