Nelson Tebbe

The Structure of Religious Preference - Harvard Law Review A revolution has occurred in the law of religious freedom. At this point, the picture is reasonably clear. The Supreme Court has greatly expanded the scope of the Free Exercise Clause.

The Supreme Court had three religious freedom cases last Term. With @richschragger.bsky.social and @nelsontebbe.bsky.social, our latest comments on them, extending our analysis of religious preferentialism under the First Amendment.

harvardlawreview.org/print/vol-13...

Also exceedingly rare for a court to cite Schragger, Schwartzman, and Tebbe, but lo and behold.

What's At Stake In The Supreme Court LGBTQ+ Schoolbooks Case Maryland parents are seeking opt-out measures for classroom instruction featuring LGBTQ+ people.

Some thoughts on Mahmoud v. Taylor, where parents are seeking to exempt their kids from elements of the public school curriculum that teach acceptance of LGBTQ people. (This interview was conducted before yesterday's oral argument.) time.com/7279370/mahm...

Congratulations! It's a terrific paper.

Along with fellow Religion Clause scholars, I filed an amicus brief yesterday arguing that the Establishment Clause would prohibit such an establishment (and also prohibit the state's sponsorship and funding of the religious school).

www.supremecourt.gov/DocketPDF/24...

My fellow amici are @bjessiehill.bsky.social, Bill Marshall, @micahschwartzman.bsky.social, @richschragger.bsky.social, and @nelsontebbe.bsky.social. Don Verrilli is the Counsel of Record. [3]

In this brief in Mahmoud, Larry Sager and I argue that Tandon, property understood, requires equal value toward religious groups. Nothing in Mahmoud indicates devaluing, all things considered. Outstanding work by Becca Hansen, Rachel Miller-Ziegler, and Helen White of Munger Tolles.

Here's our amicus brief in Drummond, where the Court is considering whether Oklahoma must fund a religious charter school. Our distinctive argument is that the answer is no, regardless of whether the school is public or private. Thanks to Marty Lederman for drafting, and to Don Verrilli as counsel.

Supreme Court hears case about religious tax exemption The Supreme Court is considering a case about a Catholic charity in Wisconsin that's seeking an exemption from paying into the state's unemployment insurance system.

www.wbur.org/hereandnow/2...

The Trump administration cancels $400 million in grants and contracts to Columbia University.

This "immediate cancellation" violates the law. If the Admin thinks Columbia has violated Title VI by being deliberately indifferent to antisemitic harassment, it has to give Columbia a chance for a hearing first, make findings on the record, & wait 30 days.

www.nytimes.com/live/2025/03...

Congrats to the Texas A&M Law Review for hosting a fantastic symposium today on Jack Balkin's book "Memory and Authority." What a treat to talk constitutional interpretation with these great scholars! ⬇️

Will always be a sucker for the hard copy.

In addition to general constitutional objections to Trump’s impoundment, religious recipients of federal grants/aid would seem to have free exercise claims under Fulton/Sherbert, given that this order creates a system of discretionary exemptions and individualized assessments. Relevant text below:

Right I get that the schools don't yet exist--your point. But my point is that the state action doctrine is a distraction.

As we write, it would achieve through the courts much more than has been possible at the ballot box--charter schools affect a much, much larger portion of primary and secondary education than voucher programs do.

Starting off 2025 with the publication of Reestablishing Religion, co-authored with @richschragger.bsky.social and @nelsontebbe.bsky.social.

lawreview.uchicago.edu/print-archiv...

Supreme Court to Hear Oklahoma Religious Charter School Case The proposal to create the nation’s first religious charter school paid for by taxpayer funds could move the line between church and state in education.

For the political economy of this case, and predictions about it, I’m (again, I know) re-upping my article, Reestablishing Religion, with @nelsontebbe.bsky.social and @richschragger.bsky.social:

lawreview.uchicago.edu/print-archiv...

The language of state action here is misleading. The question is whether such as school would be a public school, in which case it's okay to exclude religious schools from funding. But of course the state action doctrine is satisfied--the government is deciding whether to fund, and the FEC applies.