University of Notre Dame

There Are No Unconstitutional Conditions on Free Exercise

July 14, 2023

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Michael A. Helfand*


Maybe no passage about the unconstitutional conditions doctrine is quite as memorable as the judgment rendered by Adam Cox and Adam Samaha: “You can easily question the judgment of anyone who writes a paper, even an essay, with ‘unconstitutional conditions’ in the title.  The topic is very 1980s and scholars lost their enthusiasm for it not long after the Go-Go’s broke up.”1

And yet, recent court decisions—and the government response to them—have thrust the doctrine back onto the scholarly agenda.  At the center of this renewed interest is a series of recent Supreme Court cases prohibiting exclusion of religion and religious institutions from generally available government funding programs.2  Such exclusions, according to the Court, constitute an impermissible targeting of religion and, as a result, violate the First Amendment’s Free Exercise Clause.  The consequences of these decisions are broad.  While government has no obligation to fund religious institutions, they cannot maintain such programs without including religious institutions in such programs on equal footing.

But what if government, instead of excluding religious institutions, places other conditions on receipt of funding?  For example, can government condition funds on compliance with prevailing antidiscrimination norms—or can government go even further and require institutions to expressly waive their free exercise rights in order to receive funds?  These sorts of puzzles naturally present themselves as questions about the unconstitutional conditions doctrine.  The goal of this short Essay is to argue against that impulse.  Instead, as detailed below, this Essay claims that when it comes to the Free Exercise Clause, the unconstitutional conditions doctrine does no independent work.3  Instead, evaluating such conditions can and ought to be done with reference to the demands of the Free Exercise Clause itself.  Conditions in this context will rise and fall on their ability to clear the hurdles presented by the free exercise doctrine—no more and no less.

©2023 Michael A. Helfand.  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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*Brenden Mann Foundation Chair in Law and Religion, Professor of Law, and Co-Director of the Nootbaar Institute on Law, Religion and Ethics at Pepperdine Caruso School of Law; Visiting Professor and Oscar M. Ruebhausen Distinguished Fellow, Yale Law School; Senior Fellow, Shalom Hartman Institute.

1Adam B. Cox & Adam M. Samaha, Unconstitutional Conditions Questions Everywhere: The Implications of Exit and Sorting for Constitutional Law and Theory, 5 J. Legal Analysis 61, 62 (2013).

2See Trinity Lutheran Church v. Comer, 137 S. Ct. 2012, 2021 (2017); Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2261 (2020); Carson v. Makin, 142 S. Ct. 1987, 1997 (2022).

3The subject of this Symposium is unconstitutional conditions on the free exercise of religion.  Whether or not the criticisms below apply in other constitutional contexts I will leave for another time.  For now, I will simply note that where other constitutional doctrines leverage core intuitions about coercion, the unconstitutional conditions doctrine, at least on some views, might expand the scope of what qualifies as coercion.