Nelson Tebbe
Cornell University, Cornell Law School, Faculty Member
- Brooklyn Law School, Law, Faculty Memberadd
The Journal of the American Academy of Religion has solicited eight thoughtful reviews of my book, Religious Freedom in an Egalitarian Age. This is my reply, which will appear together alongside the reviews and an introduction by the... more
The Journal of the American Academy of Religion has solicited eight thoughtful reviews of my book, Religious Freedom in an Egalitarian Age. This is my reply, which will appear together alongside the reviews and an introduction by the editor. In the reply, I isolate two themes that run through the reviews: curiosity about the role of reasons in conflicts between religious freedom and equality law, and concern about the concept of religion that the book tacitly employs. I first clarify that the…
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157 University of Pennsylvania Law Review PennUMBRA 283 (2009)This short piece replies to three prominent scholars who have offered thoughtful responses to my article, Excluding Religion. It first takes up their invitation to explore some... more
157 University of Pennsylvania Law Review PennUMBRA 283 (2009)This short piece replies to three prominent scholars who have offered thoughtful responses to my article, Excluding Religion. It first takes up their invitation to explore some of the ramifications of the article for legal and political theory, albeit in a limited way. Second, it revisits the article’s central argument - namely, that governments ought to have greater constitutional leeway to deny aid to religious actors and entities than is commonly thought - and shows how that proposal emerges from the conversation intact. Third, the reply defends certain limits on the practice of excluding religion, particularly the presumptive prohibition on singling out particular sects. In conclusion, the piece describes some aspirations that may legitimately motivate scholarship in this area.
111 Columbia Law Review Sidebar 140 (2011)This is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and…
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93 University of Detroit Mercy Law Review 353 (2016)Academic works about religious freedom in the United States often begin with a warning that the jurisprudence is in a state of crisis.' According to this convention, something must... more
93 University of Detroit Mercy Law Review 353 (2016)Academic works about religious freedom in the United States often begin with a warning that the jurisprudence is in a state of crisis.' According to this convention, something must be done to put the religion provisions of the First Amendment on a firmer foundation.
113 Michigan Law Review 809 (2015)How should the Constitution change? In Originalism and the Good Constitution, John McGinnis and Michael Rappaport argue that it ought to change in only one way: through the formal mechanisms set out in... more
113 Michigan Law Review 809 (2015)How should the Constitution change? In Originalism and the Good Constitution, John McGinnis and Michael Rappaport argue that it ought to change in only one way: through the formal mechanisms set out in the Constitution’s own Article V. This is so, they claim, because provisions adopted by supermajority vote are more likely to be substantively good. The original Constitution was ratified in just that way, they say, and subsequent changes should be implemented similarly. McGinnis and Rappaport also contend that this substantive goodness is preserved best by a mode of originalist interpretation.In this Review, we press two main arguments. First, we contend that McGinnis and Rappaport’s core thesis sidesteps critical problems with elevated voting rules. We also explain how at a crucial point in the book — concerning Reconstruction — the authors trade their commitments to supermajoritarianism and formalism away. Second, we broaden the analysis and sugges...
91 Notre Dame Law Review 363 (2015)Today, prominent academics are questioning the very possibility of a theory of free exercise or non-establishment. They argue that judgments in the area can only be conclusory or irrational. In contrast... more
91 Notre Dame Law Review 363 (2015)Today, prominent academics are questioning the very possibility of a theory of free exercise or non-establishment. They argue that judgments in the area can only be conclusory or irrational. In contrast to such skeptics, this Essay argues that decisionmaking on questions of religious freedom can be morally justified. Two arguments constitute the Essay. Part I begins by acknowledging that skepticism has power. The skeptics rightly identify some inevitable indeterminacy, but they mistakenly argue that it necessarily signals decisionmaking that is irrational or unjustified. Their critique is especially striking because the skeptics’ prudential way of working on concrete problems actually shares much with the methods of others. Part II then argues that the best defense of religious freedom jurisprudence begins with an approach known as coherentism. In political philosophy, coherentism refers to the way legal actors compare new problems to existing prin...
41 Pepperdine Law Review 963 (2014)In recent work, Steven Smith argues that the American tradition of religious freedom is newly imperiled and may even be nearing exhaustion. This Review puts to one side the substance of that argument and... more
41 Pepperdine Law Review 963 (2014)In recent work, Steven Smith argues that the American tradition of religious freedom is newly imperiled and may even be nearing exhaustion. This Review puts to one side the substance of that argument and focuses instead on what the stakes might be, should it turn out to be correct. It concludes that the consequences would not be as severe as many people fear.
98 Minnesota Law Review 648 (2013)What are the constitutional limits on government endorsement? Judges and scholars typically assume that when the government speaks on its own account, it faces few restrictions. In fact, they often say... more
98 Minnesota Law Review 648 (2013)What are the constitutional limits on government endorsement? Judges and scholars typically assume that when the government speaks on its own account, it faces few restrictions. In fact, they often say that the only real restriction on government speech is the Establishment Clause. On this view, officials cannot endorse, say, Christianity, but otherwise they enjoy wide latitude to promote democracy or denigrate smoking. Two doctrines and their accompanying literatures have fed this impression. First, the Court’s recent free speech cases have suggested that government speech is virtually unfettered. Second, experts on religious freedom have long assumed that there is no Establishment Clause for secular ideas. So today there is a common belief that government is free to endorse secular ideas. But that belief is mistaken. In this Article, I argue that in fact the Constitution properly imposes a broad principle of government nonendorsement. That princip...
92 North Carolina Law Review 917 (2014)When should a constitutional democracy allow private associations to discriminate? That question has become prominent once again, not only in the United States but abroad as well. John Inazu provides... more
92 North Carolina Law Review 917 (2014)When should a constitutional democracy allow private associations to discriminate? That question has become prominent once again, not only in the United States but abroad as well. John Inazu provides a provocative answer in his impressive Article, The Four Freedoms and the Future of Religious Liberty. According to his proposal, “strong pluralism,” associations should have a constitutional right to limit membership on any ground, including race. Strong pluralism articulates only three limits: It does not apply to the government, to commercial entities, or to monopolistic groups. In this Response, I raise four questions about Four Freedoms. First, I ask why exactly strong pluralism should be preferred to the existing settlement between associational interests and equality values. Second, I draw a parallel between strong pluralism and broader sorting theories, and ask about the choice of a level of generality or social organization on which to pro...
32 Cardozo Law Review 2055 (2011)Employment Division v. Smith controversially held that general laws that were neutral toward religion would no longer be presumptively invalid, regardless of how much they incidentally burdened religious... more
32 Cardozo Law Review 2055 (2011)Employment Division v. Smith controversially held that general laws that were neutral toward religion would no longer be presumptively invalid, regardless of how much they incidentally burdened religious practices. That decision sparked a debate that continues today, twenty years later. This symposium Essay explores the argument that subsequent courts have in fact been less constrained by the principal rule of Smith than advocates on both sides of the controversy usually assume. Lower courts administering real world disputes often find they have all the room they need to grant relief from general laws, given exceptions written into the decision itself and other mechanisms for circumventing its main rule. While this brief piece does not attempt to prove the empirical claim that Smith has had a limited real-world impact, it gives reasons to think that it might be accurate. Moreover, it tests a similar argument with respect to scholarship, suggesting th...
97 Virginia Law Review 1111 (2011)How should courts handle nonbelievers who bring religious freedom claims? Although this question is easy to grasp, it presents a genuine puzzle because the religion clauses of the Constitution, along with... more
97 Virginia Law Review 1111 (2011)How should courts handle nonbelievers who bring religious freedom claims? Although this question is easy to grasp, it presents a genuine puzzle because the religion clauses of the Constitution, along with many contemporary statutes, protect only religion by their terms. From time to time, judges and lawyers have therefore struggled with the place of nonbelievers in the American scheme of religious freedom. Today, this problem is gaining prominence because of nonbelievers’ rising visibility. New lines of social conflict are forming around them, generating disputes that have already gone legal. In this Article, I argue that no wholesale response will do. Nonbelievers and believers should receive comparable protection in some situations but not in others. The method I apply is polyvalent - it seeks to capture the full range of values that should matter, recognizing that the mix of relevant concerns may differ from doctrine to doctrine. Two arguments pu...
159 University of Pennsylvania Law Review PENNumbra 21 (2010)Professors Tebbe and Widiss revisit the arguments they made in "Equal Access and the Right to Marry" and emphasize their belief that distinguishing between... more
159 University of Pennsylvania Law Review PENNumbra 21 (2010)Professors Tebbe and Widiss revisit the arguments they made in "Equal Access and the Right to Marry" and emphasize their belief that distinguishing between different-sex marriage and same-sex marriage is inappropriate. They lament the sustained emphasis on the equal-protection and substantive-due-process challenges in the Perry litigation and suggest that an equal-access approach is more likely to be successful on appeal.Professor Shannon Gilreath questions some of the fundamental premises for same-sex marriage. He challenges proponents to truly reflect on "what there is to commend marriage to Gay people," and points to his own reversal on the question as evidence. Though he stands fully in opposition to critics of same-sex marriage who use the stance to veil attacks on equality generally, Gilreath argues that marriage can be seen as a further institutionalization of gays and lesbians that risks "a...
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104 Northwestern University Law Review Colloquy 70 (2009)When and how should governments be permitted to use private-law mechanisms to manage their public-law obligations? This short piece poses that question in the context of Summum,... more
104 Northwestern University Law Review Colloquy 70 (2009)When and how should governments be permitted to use private-law mechanisms to manage their public-law obligations? This short piece poses that question in the context of Summum, which the Supreme Court decided earlier this year, and Buono, which it will hear in the fall. In both cases, the government manipulated formal property rules in order to fend off constitutional challenges. In Summum, the government took ownership of a religious symbol in the face of a free speech challenge, while in Buono it shed ownership of land containing another sectarian symbol in an effort to moot an Establishment Clause problem. Although obvious differences separate the cases, they both raise the deeper question of whether and how governments ought to be able to structure private-law transactions with constitutional rules in mind. That issue, which cuts across a variety of legal fields, deserves more systematic attention.
96 Georgetown Law Journal 183 (2007)This Article addresses the prospects of liberal democracy in non-Western societies. It focuses on South Africa, one of the newest and most admired liberal democracies, and in particular on its efforts... more
96 Georgetown Law Journal 183 (2007)This Article addresses the prospects of liberal democracy in non-Western societies. It focuses on South Africa, one of the newest and most admired liberal democracies, and in particular on its efforts to recognize indigenous African traditions surrounding witchcraft and related occult practices. In 2004, Parliament passed a law that purports to regulate certain occult practitioners called traditional healers. Today, lawmakers are under pressure to go further and criminalize the practice of witchcraft itself. This Article presses two arguments. First, it contends that the 2004 statute is compatible with liberal principles of equal citizenship and the rule of law. Second, it warns against outlawing witchcraft as such. Subjecting suspected sorcerers to criminal punishment based on governmental determinations of guilt that many will perceive to be unprincipled would work too much damage to individual autonomy and national unity, among other values. Th...
25 Constitutional Commentary 317 (2008)This short piece comments on Kent Greenawalt's new book, Religion and the Constitution: Establishment and Fairness. It argues that although Greenawalt's eclectic approach carries certain... more
25 Constitutional Commentary 317 (2008)This short piece comments on Kent Greenawalt's new book, Religion and the Constitution: Establishment and Fairness. It argues that although Greenawalt's eclectic approach carries certain obvious costs, his theory cannot be evaluated without comparing its advantages and disadvantages to those of its competitors. It concludes by giving some sense of what that comparative calculus might look like.
156 University of Pennsylvania Law Review 1263 (2008)This Article considers whether government may single out religious actors and entities for exclusion from its support programs. The problem of selective exclusion has recently sparked... more
156 University of Pennsylvania Law Review 1263 (2008)This Article considers whether government may single out religious actors and entities for exclusion from its support programs. The problem of selective exclusion has recently sparked interest in lower courts and in informal discussions among scholars, but the literature has not kept pace. Excluding Religion argues that government generally ought to be able to select religious actors and entities for omission from support without offending the Constitution. At the same time, the Article carefully circumscribes that power by delineating several limits. It concludes by drawing out some implications for the question of whether and how a constitutional democracy ought to be able to influence private choices concerning matters of conscience.
56 Hastings Law Journal 699 (2005)This Article identifies a difficulty with the neutrality paradigm that currently shapes thinking about the Free Exercise Clause both on the Supreme Court and among its leading critics. It proposes a... more
56 Hastings Law Journal 699 (2005)This Article identifies a difficulty with the neutrality paradigm that currently shapes thinking about the Free Exercise Clause both on the Supreme Court and among its leading critics. It proposes a liberty component, shows how it would generate more attractive results than neutrality alone, and defends the liberty approach against likely objections.A controversial neutrality rule currently governs cases brought under the Free Exercise Clause. Under that rule, only laws and policies that have the purpose of discriminating against religion draw heightened scrutiny. All others are presumptively constitutional, regardless of how severely they burden religious practices.Critics have attacked the Court's rule with compelling normative arguments. Curiously, though, the leading academic critics have not directed those arguments against neutrality itself. Rather, they have argued that the Court has adopted the wrong sort of neutrality principle. Instead...
When the government enacts laws or regulations that accommodate religious believers, it may not impose significant costs on identifiable third parties. This is sometimes called the third-party harm doctrine. Critics of this doctrine have... more
When the government enacts laws or regulations that accommodate religious believers, it may not impose significant costs on identifiable third parties. This is sometimes called the third-party harm doctrine. Critics of this doctrine have raised a diversity of objections to it. They have argued that it (1) lacks normative foundations, (2) is not grounded in constitutional sources, (3) assumes an incorrect baseline for determining when third parties are harmed, and (4) cannot be applied without eliminating all, or nearly all, religious accommodations. Critics have also argued (5) that the doctrine does not apply when the government provides legal exemptions for both religious and secular claims of conscience, and (6) that religious freedom is like other fundamental rights that impose harms on others. We argue that none of these objections is persuasive. Responding to them provides an opportunity to develop the third-party harm doctrine in ways that illuminate the limits of religious l...
Do lawyers and judges use distinctive arguments when they interpret the Constitution? Should they? In a 2016 article, Is the Constitution Special?, Christopher Serkin and Nelson Tebbe argued that professionals do in fact interpret the... more
Do lawyers and judges use distinctive arguments when they interpret the Constitution? Should they? In a 2016 article, Is the Constitution Special?, Christopher Serkin and Nelson Tebbe argued that professionals do in fact interpret the Constitution differently from other sources of law, and they questioned the accepted justifications for that difference. Subsequently, the editors of the Cornell Law Review asked Richard Primus and Kevin Stack to respond to the article. The result is this “Debate,” which features several rounds of short responses, published together in the print edition. This format reveals disagreements among the authors about whether the Constitution is and should be interpreted distinctively, how the category “constitutional law” shifts over time, and how the Constitution’s mythic cultural status informs these questions. But it also uncovers much common ground, including a new way of understanding and debating the distinctiveness of constitutional interpretation. Th...
101 Cornell Law Review 701 (2016)“[W]e must never forget, that it is a constitution we are expounding.” If there was such a danger when Chief Justice John Marshall wrote those words, there is none today. Americans regularly assume that... more
101 Cornell Law Review 701 (2016)“[W]e must never forget, that it is a constitution we are expounding.” If there was such a danger when Chief Justice John Marshall wrote those words, there is none today. Americans regularly assume that the Constitution is special, and legal professionals treat it differently from other sources of law. But what if that is wrongheaded? In this Article, we identify and question the professional practice of constitutional exceptionalism. First, we show that standard arguments from text, structure, and history work differently in constitutional law. Second, we examine the possible justifications for such distinctive interpretation among lawyers, and we find them mostly unconvincing. Neither entrenchment, nor supremacy, nor democratic legitimacy sets the Constitution apart from other sources of law in a way that supports interpretive exceptionalism. In fact, the best argument for the practice is simply that the Constitution is regarded as unique — that it...
The Journal of Civil Rights and Economic Development has solicited six thoughtful reviews of my book, Religious Freedom in an Egalitarian Age. In this Reply, I explore some larger questions that fall outside the book's focus on the... more
The Journal of Civil Rights and Economic Development has solicited six thoughtful reviews of my book, Religious Freedom in an Egalitarian Age. In this Reply, I explore some larger questions that fall outside the book's focus on the tension between religious freedom and civil rights law. Prompted by the reviews, but also independent of them, I examine the implications of my arguments for an egalitarian theory of the First Amendment. Part I begins by addressing critical theorists of religion. I agree with them that the category of religion is essentially contested and can only be defined for particular purposes in particular institutional settings. An implication is that the category of religion can, and often should, include beliefs and practices that usually are considered nonreligious. That raises the related question of whether religion ought to receive special solicitude in constitutional law. I address that issue in Part II, where I argue explicitly that we lack good reasons...
108 Michigan Law Review 459 (2010)Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal... more
108 Michigan Law Review 459 (2010)Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated with liberty, on the one hand, and equality, on the other. We finish by discussing how attentiveness to borrowing may illuminate or improve prominent theories of constitutional lawmaking.
85 Notre Dame Law Review 1 (2009)Should religious landowners enjoy special protection from eminent domain? A recent federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), compels courts to apply a compelling... more
85 Notre Dame Law Review 1 (2009)Should religious landowners enjoy special protection from eminent domain? A recent federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), compels courts to apply a compelling interest test to zoning and landmarking regulations that substantially burden religiously owned property. That provision has been controversial in itself, but today a new cutting-edge issue is emerging: whether the Act’s extraordinary protection should extend to condemnation as well. The matter has taken on added significance in the wake of Kelo, where the Supreme Court reaffirmed its expansive view of the eminent domain power. In this Article, we argue that RLUIPA should not give religious assemblies any extraordinary ability to resist condemnation. We offer two principal reasons for this proposal. First, the political economy surrounding condemnation is markedly different from that of zoning, so that broadening the law’s protections beyond zoning t...
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4 JOURNAL OF CONTEMPORARY ETHNOGRAPHY / FEBRUARY 2001 Using data from open-ended interviews with religious leaders in three Chicago neighborhoods in combination with demographic and survey data for area residents, this article... more
4 JOURNAL OF CONTEMPORARY ETHNOGRAPHY / FEBRUARY 2001 Using data from open-ended interviews with religious leaders in three Chicago neighborhoods in combination with demographic and survey data for area residents, this article demonstrates how local ...
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Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion.... more
Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains surprisingly underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of cross-pollination, and identifies some of the risks involved. We invite readers to think of borrowing as something that happens not only during the drafting of a constitution, but also in its implementation. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated with liberty, on the one hand, and equality, on the other. We finish by discussing how confronting the practice of borrowing may illuminate or ...
... Prinsloo notes that under the Black Administration Act only house property and quitrent land must ... ex-plain below, it did indicate that indigenous rules of inheritance would survive constitutional scrutiny. Because the case seemed... more
... Prinsloo notes that under the Black Administration Act only house property and quitrent land must ... ex-plain below, it did indicate that indigenous rules of inheritance would survive constitutional scrutiny. Because the case seemed to uphold cus-tomary law even in the face of a ...
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4 JOURNAL OF CONTEMPORARY ETHNOGRAPHY / FEBRUARY 2001 Using data from open-ended interviews with religious leaders in three Chicago neighborhoods in combination with demographic and survey data for area residents, this article... more
4 JOURNAL OF CONTEMPORARY ETHNOGRAPHY / FEBRUARY 2001 Using data from open-ended interviews with religious leaders in three Chicago neighborhoods in combination with demographic and survey data for area residents, this article demonstrates how local ...
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9 Harvard Law & Policy Review 25 (2015)To date, every state statute that has extended marriage equality to gay and lesbian couples has included accommodations for actors who oppose such marriages on religious grounds. Debate over those... more
9 Harvard Law & Policy Review 25 (2015)To date, every state statute that has extended marriage equality to gay and lesbian couples has included accommodations for actors who oppose such marriages on religious grounds. Debate over those accommodations has occurred mostly between, on the one hand, people who urge broader religion protections and, on the other hand, those who support the types of accommodations that typically have appeared in existing statutes. This article argues that the debate should be widened to include arguments that the existing accommodations are normatively and constitutionally problematic. Even states that presumptively are most friendly to LGBT citizens, as measured by their demonstrated willingness to enact marriage equality laws, have included provisions that may well retrench on civil rights principles in ways that are significant but underappreciated. Especially at a moment when marriage equality is moving into jurisdictions that are even more concerned ...
From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment,... more
From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative " conscience clauses " are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties about such " First Amendment Lochnerism " date back to the federal judiciary's initial turn to robust protection of free exercise and free expression in the 1930s and 1940s. Then, it was those members of the Supreme Court perceived as most liberal who struck down economic regulations on First Amendment grounds.