Religious Choice and Exclusions of Religion

19 Pages Posted: 1 Nov 2008

See all articles by Thomas C. Berg

Thomas C. Berg

University of St. Thomas, St. Paul/Minneapolis, MN - School of Law

Date Written: October, 31 2008


Among the most important recent questions under the Religion Clauses has been whether and when government programs that support private activities, such as education or social services, may exclude religious institutions or activities that include religious content. Nelson Tebbe's article, Excluding Religion, argues that government should have "considerable latitude" to make such exclusions, even though he concedes they will discourage citizens from choosing religious options. In this response, published in PENNumbra (the University of Pennsylvania Law Review's online companion), I argue that Tebbe's justifications for excluding religion fail if the protection of citizens' religious choices against government influence is a central purpose of the Religion Clauses. I then turn to the key question whether preserving religious choice is indeed central, and I argue that it is, based on precedent, on traditions and concepts associated with the Religion Clauses, and on the fact that they are counter-majoritarian while Tebbe's position gives majorities great discretion over religious matters.

Keywords: First Amendment, Religion Clauses, Funding of Religion, Establishment Clause, Free Exercise Clause, Separation of Church and State, Religious Freedom

Suggested Citation

Berg, Thomas Charles, Religious Choice and Exclusions of Religion (October, 31 2008). PENNumbra, 2008; U of St. Thomas Legal Studies Research Paper No. 08-32. Available at SSRN:

Thomas Charles Berg (Contact Author)

University of St. Thomas, St. Paul/Minneapolis, MN - School of Law ( email )

1000 La Salle Avenue
Mail # MSL400
Minneapolis, MN 55403-2015
United States

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