Despite clear Supreme Court rulings, religious discrimination continues to infect government funding across the country. Hundreds of laws and regulations—at the local, state, and federal levels—shut out religious individuals and institutions from public programs ranging from health care and education to the arts. This exclusion persists even though the Supreme Court has repeatedly affirmed that such discrimination is “odious to our constitution.”
This is why we—along with our institutional partners, the EPIC Coalition, Teach Coalition, and Notre Dame Law School’s Lindsay and Matt Moroun Religious Liberty Clinic and Education Law Project—have launched a website to expose religious discrimination in state government funding.
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The scope and impact of this ongoing discrimination are staggering. Government programs routinely exclude religious schools, hospitals, charities, and social-services groups from funding that they would otherwise be eligible to receive—or require them to secularize as a condition of participation.
Thankfully, courts have begun pushing back, striking down these exclusions as violations of the First Amendment. But winning this constitutional game of Whac-A-Mole depends on making the full extent of the problem clear to the public. That’s why we’ve identified the laws and regulations in every state that continue to defy the constitutional prohibition on religious exclusion. By bringing this discrimination into the open, we hope to encourage individuals and institutions to press for change—in both the courts and legislatures—so that government programs are open to all.
Many of these discriminatory laws stem from an outdated understanding of the Constitution. For decades, courts and legislatures followed a distorted interpretation of the First Amendment that effectively excluded religious institutions from government funding. Much of this was driven by the now-abandoned “Lemon Test”—an ahistorical, three-part legal test invented by the Supreme Court in the early 1970s to govern in Establishment Clause cases. Relying on that framework, lawmakers and judges adopted an aggressive—and misguided—reading of the Establishment Clause, treating the equal inclusion of religion in public programs as unconstitutional. The result: for nearly half a century, legislatures wrote funding rules that specifically targeted religious institutions for exclusion.
Over the past quarter century, the Supreme Court has gradually corrected these constitutional errors. Starting in the early 2000s, the Court made clear that the Establishment Clause does not require government hostility toward religion. In case after case, it affirmed that including religious institutions in government programs on equal terms does not impermissibly “advance” religion. More recently, the Court has ruled that once the government opens a public program to private institutions, it cannot exclude religious participants without violating the First Amendment.
Unfortunately, states did not take sufficient notice of these decisions. Legislatures have failed to revisit laws that contain provisions excluding religious institutions. Executive officials failed to make it clear that these provisions would not be enforced. When conducting our survey of state laws, we found hundreds of state laws and regulations that prohibit religious institutions from participating in nearly every conceivable category of government-funding programs.
In Massachusetts, for example, military food stores can donate food before it spoils to charitable institutions—but not religious ones. In Illinois, townships can provide surplus funds to organizations that support senior-citizen services—but not if they’re religious. Kentucky makes funds available to nonpublic schools, but to be eligible, a school must be structurally and operationally separate from any religious organization. The Oklahoma Arts Council dispenses funds to various institutions supporting the arts—but not if they’re religious. These examples are just the tip of the iceberg. In total, we found nearly 500 laws and regulations that follow this pattern.
As plaintiffs begin challenging these laws, courts have—by and large—faithfully applied the Supreme Court’s updated doctrine. In California, for instance, religious schools were barred from becoming state-certified special needs schools and thus excluded from potential tuition and services funding. But last year, a Ninth Circuit panel ruled that the law violated the First Amendment, noting that its express exclusion of religious institutions “easily . . . fails the neutrality test.” More recently, a New Jersey district court struck down a county policy that excluded religious institutions from eligibility for historic preservation funds.
Importantly, these decisions bear no trace of partisan rancor. The unanimous Ninth Circuit decision was authored by a Clinton appointee; the New Jersey district court judge is a Biden appointee.
This legal momentum, though promising, is only half the equation. State legislatures and attorneys general can’t reform discriminatory laws if they’re unaware of the outdated statutes and regulations on the books. Plaintiffs won’t challenge religious exclusions if they don’t realize those exclusions are unconstitutional, and courts can’t strike them down until they’re contested.
By bringing the full scope of this constitutional malfeasance into view, we hope to equip advocates and lawmakers to begin the hard work of eliminating the persistent, pervasive discrimination that continues unconstitutionally to restrict religious liberty.
Photo: PixelCatchers / E+ via Getty Images
