Once More, With Feeling: The Puzzling Persistence of Overt Government Discrimination Against Religion

For those folks who turn first to Bench Memos, and not NRO generally: I wrote a short article, posted today to the NRO main page, under the title “Religious Freedom, Again: Why the Supreme Court should take up the Bronx Household of Faith case.“

The Court is set to conference on Bronx Household of Faith this Friday.

Here’s an excerpt:

How many times do we need to go over this?

Apparently, at least once more: The Supreme Court will conference on a cert. petition in yet another round of Bronx Household of Faith v. Board of Education of the City of New York – a dispute that has been going on for twenty years and has been to the Second Circuit five times. Consider this a late amicus brief in support of granting certiorari.

The justices really ought to take this one, to slap down an intransigent Second Circuit and to vindicate a core constitutional principle: The Establishment Clause of the First Amendment does not in any way authorize, and the Free Speech and Free Exercise Clauses do not permit, direct government discrimination against religion, religious persons, religious groups, or religious expression in government programs, policies, benefits, or forums. Ever. Government may not directly exclude religious persons or beneficiaries from programs or benefits available to other persons or groups, just because they are religious. And government may not jigger its categories to artfully gerrymander religious persons, organizations, and institutions out of equal inclusion in such programs or benefits. Ever.