Notre Dame Law Review

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Thomas C. Berg*

When the government puts a condition on funding or other benefits that it provides, can it impose that condition on a recipient (organization or individual) whose religious character or tenets conflict with the condition?  That question arises in some of today’s most prominent religious-freedom controversies, actual and potential.  Conditions accompanying certain federal contracts and funding programs prohibit discrimination based on religion or sexual orientation; those conditions may prevent a recipient organization from requiring that its leaders or employees affirm or live consistently with its religious tenets.  Even the highly uncertain prospect that the federal government might someday strip tax exemptions from organizations that discriminate against same-sex couples became an issue in the 2016 presidential election, increasing religious conservatives’ fear of a Democratic victory.¹

At the same time as these controversies have multiplied, recent Supreme Court decisions have increasingly protected the free exercise of religion under both the First Amendment and federal religious-freedom statutes.  Free exercise has seen a renewal, one that seems likely to continue.

This Essay briefly assesses what the next steps in the free exercise renewal may mean for upcoming questions about government benefits.  After explaining the doctrines that have invigorated free exercise, I discuss two categories of conditions: (1) those that formally discriminate against religious recipients or exercise, and (2) those that substantially burden religious exercise without formally disfavoring it.  Both kinds of conditions can seriously harm religious freedom; both deserve close judicial scrutiny.  With respect to each, I suggest the next steps the Court is likely to take as it continues renewing the protection of free exercise.

©2023 Thomas C. Berg.  Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review Reflection, and includes this provision in the copyright notice.

*James L. Oberstar Professor of Law and Public Policy, University of St. Thomas School of Law (Minnesota).

1See David Bernstein, Opinion, The Supreme Court Oral Argument That Cost Democrats the Presidency, Wash. Post (Dec. 7, 2016, 4:29 PM), https://‌www.washingtonpost.com‌/news‌/volokh-conspiracy‌/wp‌/2016‌/12‌/07‌/the-supreme-court-oral-argument-that-cost-democrats-the-presidency‌/ [https://perma.cc/KWZ5-AXQN].