There Are No Unconstitutional Conditions on Free Exercise

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.” 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. 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. 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.