74 Am. U. L. Rev. F. 1 (2024).

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Abstract

Can governments repeal religious accommodations? Because accommodations are voluntary, not mandated by the Constitution or other laws, they traditionally have been thought to be freely rescindable. However, a recent argument suggests that repeals of religious accommodations are presumptively invalid under the Free Exercise Clause because they target and burden believers. This argument is not completely inconceivable at a time when the Roberts Court is upending free exercise and nonestablishment law.

Yet implementing a presumption against repeals of religious accommodations would generate sharp contradictions. Rather than assessing the attractiveness of such a change, this Response examines those complexities. It investigates the proposed rule against religious anticlassification, the impact on animus doctrine, the application of the Tandon rule, and six smaller issues. The conclusion suggests implications for judicial politics and for the shift in Supreme Court doctrine towards a new paradigm of religious freedom.

* Jane M.G. Foster, Professor of Law, Cornell Law School. Thanks to the American University Law Review for inviting this Response. For helpful comments on previous drafts, warm thanks to Christopher Lund, James Nelson, Laura Portuondo, Richard Schragger, and Elizabeth Sepper. Generous support was provided by the Milton and Eleanor Gould Fund at Cornell Law School.

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