Germaneness and Religious Liberty

Abstract

One problem posed by a symposium on the doctrine of unconstitutional conditions and religious liberty is that it turns out there is not much actual doctrine in the area. The issue of unconstitutional conditions has been a topic in constitutional law more generally and is widely regarded as a doctrinal muddle, it has explicitly been invoked only rarely in religion cases. In this Article, I propose that we look next door from free exercise of religion to the development of unconstitutional conditions in free speech doctrine, where there has been a series of cases over several decades developing (however haltingly) a set of criteria we can broadly lump under the heading of “germaneness” for assessing the constitutionality of conditions on recipients of government benefits. The germaneness requirement, variously understood, serves as both a criterion for permitting government regulation attached to a benefit and for when such regulation exceeds a constitutionally permissible limit. And even if germaneness is more a “standard” than a “rule,” it at least provides a guide that is grounded in precedents that have traced out its content and serves the functional purpose of preventing government from leveraging its financial resources to accomplish objectives at odds with First Amendment rights.

Keywords: First Amendment, religious liberty, freedom of speech, unconstitutional conditions

JEL Classification: K10, K30