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First Page

621

Last Page

698

Document Type

Comment

Abstract

At its core, this Article is about whether states have the discretion to discriminate against religious organizations by excluding them from generally available secular government aid programs. In the wake of the Supreme Court’s 2004 decision in Locke v. Davey, the federal courts have developed conflicting interpretations of whether the Court’s holding in Locke permits states to exclude religious organizations from generally available secular aid programs. However, the Court’s 2017 decision in Trinity Lutheran v. Comer has cast doubt on the ability of states to exclude religious organizations from such programs and seemingly restricts the Court’s prior decision in Locke to a narrow reading. Reconciling both holdings is difficult, but Locke seemingly provides an exception from Trinity Lutheran’s general rule that prohibits the withholding of aid on the basis of the recipient’s religious character. This Article seeks to reconcile those two holdings and, in the process, posits that the Supreme Court’s current “play in the joints” framework is problematic primarily because it rests on a series of mistakes about the nature and purpose of the Religion Clauses. As a result, the Court’s framework bestows upon the states a large amount of discretion in how to draw the line between discrimination and non-discrimination. Ultimately, foreclosing a state’s discretion to unconstitutionally target religious organizations for exclusion from generally applicable secular aid requires rebuilding a theoretical framework from a proper understanding of the relationship between the Establishment and Free Exercise Clauses as well as acknowledging the importance of substantive neutrality.

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