Professor Michael Helfand, "Mapping Carson: New Frontiers of Religious Exclusion in Government Programs" -- Notre Dame Law Review (forthcoming)

Professor Michael A. Helfand's article, Mapping Carson: New Frontiers of Religious Exclusion in Government Programs, (SSRN) will be published in the Notre Dame Law Review. The article clarifies both the reach and the limits of the Supreme Court’s recent Free Exercise Clause cases.

Abstract of Mapping Carson: New Frontiers of Religious Exclusion in Government Programs

Carson v. Makin appeared to announce a straightforward rule: once a state opens a generally available public program to private participation, it may not exclude religious actors. Yet the apparent clarity of that rule masks a rapidly developing and increasingly complex body of Free Exercise doctrine. This Article maps the emerging post-Carson landscape by examining how lower courts are implementing Carson across a range of regulatory contexts, including public funding programs, education law, disability services, and civil-rights regimes. In doing so, it identifies several distinct doctrinal pathways through which Carson is being applied, including status discrimination, use discrimination, neutrality and targeting, general applicability, church autonomy, and the residual scope of Locke v. Davey.

The Article argues that Carson is best understood not as a departure from prevailing Free Exercise doctrine, but as a specific application of the neutrality framework articulated in Employment Division v. Smith, reinforced by the doctrine of unconstitutional conditions. Viewed through this lens, exclusions of religious actors from public programs—and conditions that require religious institutions to surrender protected forms of religious exercise—trigger strict scrutiny not because they involve public benefits as such, but because they reflect nonneutral or selectively applied burdens on religion. By situating Carson within this broader doctrinal structure, the Article clarifies both the reach and the limits of the Court’s recent cases and offers a roadmap for courts, legislatures, and agencies navigating the new frontiers of religious exclusion—and inclusion—in government programs.