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Excluding Religion

77 Pages Posted: 29 Aug 2007 Last revised: 5 Aug 2008

Nelson Tebbe

Cornell Law School


This Article considers whether government may single out religious actors and entities for exclusion from its support programs. The problem of selective exclusion has recently sparked interest in lower courts and in informal discussions among scholars, but the literature has not kept pace. Excluding Religion argues that government generally ought to be able to select religious actors and entities for omission from support without offending the Constitution. At the same time, the Article carefully circumscribes that power by delineating several limits. It concludes by drawing out some implications for the question of whether and how a constitutional democracy ought to be able to influence private choices concerning matters of conscience.

Keywords: First Amendment, establishment clause, free exercise

Suggested Citation

Tebbe, Nelson, Excluding Religion. 156 University of Pennsylvania Law Review 1263 (2008); Brooklyn Law School, Legal Studies Paper No. 85. Available at SSRN:

Nelson Tebbe (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Ithaca, NY 14853
United States
(607) 255-3506 (Phone)

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