Introduction
A revolution has occurred in the law of religious freedom. At this point, the picture is reasonably clear. The Supreme Court has greatly expanded the scope of the Free Exercise Clause. In almost every Term over the past decade, it has taken cases involving free exercise challenges and sided with religious parties, requiring equal access to public funding1 and authorizing exemptions from a wide range of state and federal laws.2 It is no exaggeration to say that the Roberts Court has been more solicitous of free exercise claims than any of its predecessors.3 At the same time, the Court has also dramatically curtailed or altogether abandoned precedents that had limited government religious expression and taxpayer support for religious institutions.4 It has been, to borrow a phrase, “[d]isestablishing the Establishment Clause.”5
If the picture is clear, however, it nevertheless emerges from a kind of jurisprudential pointillism. An overall pattern forms from distinct decisional dots, which may appear disconnected, but which merge into a more meaningful image, at least when seen from a distance. Many of the Court’s recent religious freedom decisions are based on the revival or resuscitation of individual precedents that had not been invoked in decades and that had limited, if any, extensions or applications.6 But rather than explain how these precedents are connected, and rather than draw clear lines between them, the Court has moved from one to the next, leaving the future of each undeveloped and uncertain.7 And even when it has drawn a clear line, the Court has stopped abruptly and without explanation.8
Still, stepping back, any observer can see that the era of “strict separation” between church and state is over.9 In the mid- to late twentieth century, the Supreme Court had constrained government sponsorship of religion, both symbolically and financially, and it had rarely authorized constitutionally mandated religious exemptions.10 But the Roberts Court has performed an about-face. It has worked — sometimes incrementally,11 but increasingly in lurches12 — to transform constitutional doctrines shaping the relationship between government and religion. On one hand, the Court now requires equal treatment of religious individuals and associations with respect to funding and access to other publicly available benefits,13 and, on the other, it requires special treatment in the form of accommodations from laws that burden religious beliefs and practices.14 When these doctrines come together, they create a structure of preference for religion — what we have called structural preferentialism15 — which results in constitutional favoritism for religious over nonreligious views and, despite the Court’s recent protestations to the contrary,16 for some religious denominations over others.
The Court’s embrace of this paradigm — equal treatment for benefits and special exemptions from burdens — has proceeded largely under the banner of religious neutrality. The concept of neutrality has long played a prominent and even central role in the Court’s decisions under the Religion Clauses of the First Amendment.17 And it is easy to see why. The idea that the state should not take sides among competing and conflicting religious denominations — or among religious and nonreligious views — resonates within the liberal constitutional tradition and draws support from basic principles of toleration, fairness, and nondiscrimination.18 But as critics have long argued, without further specification, the concept of religious neutrality is ambiguous and susceptible to inconsistent application.19 Some have gone further to argue that neutrality is impossible,20 but the Court has never accepted that skeptical view. Instead, the Justices continue to invoke various conceptions of neutrality, without offering a systematic account of the principle or its applications. The result is a pattern of decisions that are often — although as we shall see, not always — justified in terms of neutrality but that together reveal a preference for religion.
We have previously analyzed the doctrine from an external perspective that accounts for these decisions as if they were the products of conflicts among competing interest groups.21 Here, we add an internal criticism of how various approaches to neutrality operate in the doctrine and in justifications offered for it. In our analysis, we do not defend a particular conception of neutrality and instead aim to show how the Court’s own logic works across doctrinal domains.
To develop our claim, in Part I, we show that the Court has relied on principles of neutrality and nondiscrimination in revolutionizing its religious freedom jurisprudence. But different conceptions of neutrality are at work in different parts of the doctrine, and, as the Court shifts between them, it creates a legal structure that favors religion. This is how neutrality gives way to preference. In Part II, we argue that the Court’s decisions from this Term involving religious freedom — Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission,22 Mahmoud v. Taylor,23 and Oklahoma Statewide Charter School Board v. Drummond24 — extend this pattern in the Court’s pointillistic approach to the Religion Clauses. Last, in Part III, we ask: What, if anything, is wrong with structural preferentialism? Although the separationist consensus has collapsed, its warnings against religious establishment are especially salient in this antiliberal moment, marked by intense polarization, rising religious disaffiliation, and increasing calls for ethnoreligious nationalism. The case for disestablishment — requiring neutrality not only among religious denominations but also between religious and nonreligious views — may have fallen on hard times. But the arguments for it, which we renew, warn against the expansion and entrenchment of religious preferentialism.
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* Hardy Cross Dillard Professor of Law, University of Virginia School of Law.
* * Walter L. Brown Professor of Law, University of Virginia School of Law.
* * * Jane M.G. Foster Professor of Law, Cornell Law School. For comments and discussion, we thank Alan Brownstein, Michael Dorf, Chad Flanders, Frederick Gedicks, Andrew Koppelman, Douglas Laycock, Katherine Metheny, Vincent Phillip Muñoz, Melissa Murray, Doug NeJaime, James Nelson, James Oleske, Alan Patten, Laura Portuondo, Richard Re, Zalman Rothschild, Amy Sepinwall, Elizabeth Sepper, Nomi Stolzenberg, Xiao Wang, and the editors of the Harvard Law Review.