University of Notre Dame

Germaneness and Religious Liberty

July 14, 2023

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Michael P. Moreland*


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 leading law and religion casebook contains only three references—each a passing mention—to unconstitutional conditions,1 characterizing Sherbert v. Verner2 as an unconstitutional conditions case and noting the relevance of unconstitutional conditions to the recent Trinity Lutheran Church of Columbia, Inc. v. Comer3 to Carson v. Makin4 line of funding cases.  And so while 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.

That state of the topic might be changing, however, as government at different levels expands its regulatory reach and increasingly funds religious institutions with strings attached.5  And so as courts confront questions about unconstitutional conditions in the context of religious liberty, the need for doctrinal signposts has become more pressing.  In this Essay, 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.

To appreciate the doctrinal gap in the free exercise area, consider the Trinity Lutheran to Espinoza v. Montana Department of Revenue6 to Carson v. Makin line of funding cases.  In each case, the state established a funding program (playground resurfacing in Trinity Lutheran7 or tuition scholarships in Espinoza and Carson)8 and set a condition on recipients that there may not be “religious” (in Trinity Lutheran and Espinoza)9 or “sectarian” (in Carson) participants or uses in the program.10  Such a condition was deemed in all three cases to violate a nondiscrimination requirement of the Free Exercise Clause (and nonfunding of the schools was not required by the Establishment Clause).11  But Chief Justice Roberts’s opinions in all three cases did not explore the extent to which the state could constitutionally impose a condition on recipients of funding, only that the Free Exercise Clause operated as a categorical barrier to the imposition of the conditions in each of those cases.

Similarly in Sherbert v. Verner (also sometimes cited as an unconstitutional conditions case), the conditioning of unemployment compensation benefits on someone’s willingness to work on her Sabbath was held to violate the Free Exercise Clause12 and ushered in an era of treating claims for substantial burdens on free exercise of religion with strict scrutiny (even if, as Justice Scalia noted in Employment Division v. Smith, the government prevailed with unusual frequency in such cases).13  As in the recent school funding cases, the Court’s opinion in Sherbert did not explore much if at all why such a condition on the government benefit is constitutionally impermissible, only that the condition there was a substantial burden on the claimant’s free exercise rights and the state’s proffered interests were not compelling.14

In free exercise cases, then, the doctrine of unconstitutional conditions (to the extent there is such a “doctrine”) has drawn a categorical line that leaves for future cases development of criteria for when conditions might yet be constitutionally permissible.  In a long line of unconstitutional conditions cases involving the Freedom of Speech Clause, however, the Court has, in fact, developed a set of criteria to help guide its decisions about when a condition is constitutionally excessive and when a condition is not.  The Court has never given a precise label to this set of criteria, but I borrow and expand upon the term “germaneness” from Kathleen Sullivan’s article on unconstitutional conditions15 to cover both (a) the requirement that a condition be relevant to the purpose of the government benefit, and (b) a distinction between permissible conditions that define a program’s boundaries and impermissible conditions that fall outside of it.

This Essay will proceed in Parts I and II to consider the free speech cases in which the Court has found conditions on a government benefit to be constitutionally permissible and impermissible.  Part III will develop the emerging “germaneness” requirement and discuss possible applications of it to emerging free exercise controversies.

©2023 Michael P. Moreland.  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
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*University Professor of Law and Religion, Villanova University.  I am grateful to the editors of the Notre Dame Law Review for their invitation to participate in the Symposium on Religious Liberty and Unconstitutional Conditions and for their editorial work, and also to the participants in the Symposium for their questions and comments.

1Michael W. McConnell, Thomas C. Berg, & Christopher C. Lund, Religion and the Constitution 115, 382, 407 (5th ed. 2022).

2374 U.S. 398 (1963).  See also the discussion of Sherbert and other unemployment insurance cases as posing the problem of unconstitutional conditions in Richard A. Epstein, Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent, 102 Harv. L. Rev. 4, 79–87 (1988).

3137 S. Ct. 2012 (2017).

4142 S. Ct 1987 (2022).

5Aaron Tang, There’s a Way to Outmaneuver the Supreme Court, and Maine Has Found It, N.Y. Times (June 23, 2022), [] (discussing Maine’s enactment of an anti-discrimination requirement applied to private schools participating in the tuition program at issue in Carson v. Makin).

6Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246 (2020).

7Trinity Lutheran, 137 S. Ct. at 2017.

8Espinoza, 140 S. Ct. at 2251 (2020); Carson, 142 S. Ct. at 1993–94.

9Trinity Lutheran, 137 S. Ct. at 2017; Espinoza, 140 S. Ct. at 2252.

10Carson v. Makin, 142 S. Ct 1987, 1993 (2022).

11See Trinity Lutheran, 137 S. Ct. at 2024; Espinoza, 140 S. Ct. at 2262; Carson, 142 S. Ct. at 2002.

12Sherbert v. Verner, 374 U.S. 398, 409–10 (1963).

13See 494 U.S. 872, 883 (1990).

14Sherbert, 374 U.S. at 403–09.

15Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1456–76 (1989).