Over the last decade, the Supreme Court has revolutionized the law of religious freedom. At this point, the picture is reasonably clear. The Court has dramatically expanded the scope of the Free Exercise Clause, routinely siding with religious claimants by requiring equal access to public funding and by authorizing exemptions from a wide range of state and federal laws. At the same time, the Court has abandoned precedents that limited government religious expression and taxpayer support for religious institutions under the Establishment Clause.
If the picture is clear, however, it emerges through a kind of jurisprudential pointillism. The Court’s decisions may appear distinct, but, stepping back, any observer can see that they mark the end of “strict separation” between church and state. The Court now demands equal treatment of religious organizations in receiving public benefits, while simultaneously requiring special accommodations from general laws that burden religion. When these doctrines converge, they create a structure of preference for religion, which entails constitutional favoritism for religious over nonreligious views and for some religious denominations over others.
In this Comment, we argue that the Court’s religious freedom decisions from the 2024 Term—Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, Mahmoud v. Taylor, and Oklahoma Statewide Charter School Board v. Drummond—extend and deepen this preferentialist turn. We then ask what, if anything, is wrong with structural preferentialism? Although the separationist consensus has collapsed, its warnings against religious establishment are especially salient in this antiliberal moment, marked by intense polarization, rising religious disaffiliation, and increasing calls for ethno-religious nationalism. The case for disestablishment—requiring neutrality not only among denominations but also between religious and nonreligious views—has fallen on hard times. But the arguments for it, which we renew, warn against the expansion and entrenchment of religious preferentialism.
Citation
Micah J. Schwartzman, Richard C. Schragger & Nelson Tebbe, The Structure of Religious Preference, 139 Harvard Law Review 211 (2025).