Repeals of Religious Accomodations

Nelson Tebbe, American University Washington College of Law

Abstract

Can governments repeal religious accommodations? Because accommodations are voluntary, not mandated by the Constitution or other laws, they traditionally have been thought to be freely rescindable. However, a recent argument suggests that repeals of religious accommodations are presumptively invalid under the Free Exercise Clause because they target and burden believers. This argument is not completely inconceivable at a time when the Roberts Court is upending free exercise and nonestablishment law.

Yet implementing a presumption against repeals of religious accommodations would generate sharp contradictions. Rather than assessing the attractiveness of such a change, this Response examines those complexities. It investigates the proposed rule against religious anticlassification, the impact on animus doctrine, the application of the Tandon rule, and six smaller issues. The conclusion suggests implications for judicial politics and for the shift in Supreme Court doctrine towards a new paradigm of religious freedom.