Unconstitutional Religious Discrimination Runs Rampant in State Programs

In three recent decisions, the Supreme Court of the United States clarified that the First Amendment’s prohibition on religious discrimination extends to public benefit programs that enlist private organizations to advance public goals. In Trinity Lutheran Church v. Comer (2017), the Court held that Missouri violated the Free Exercise Clause by excluding a faith-based preschool from a state program that provided recycled tires for playground resurfacing. In Espinoza v. Montana Departmentc of Revenue (2020), the Court held that the Montana Supreme Court violated the Free Exercise Clause when it invalidated, on state constitutional grounds, a private-school-choice program because it included faith-based schools. And in Carson v. Makin (2022), the Court held that Maine unconstitutionally excluded religious schools from a scholarship program for students in rural school districts.

Read together, these cases make clear that when the government adopts a program that extends public benefits to private organizations, the Free Exercise Clause prohibits it from excluding religious organizations from participating and from requiring them to secularize to participate. Unfortunately, the import of these decisions is not yet universally reflected in government policies on the ground. Although the Court has made clear that the government cannot refuse to extend otherwise available public benefits to organizations because they are religious—or because they do religious things—many dozens, likely even hundreds, of public programs at all levels of government continue to do exactly that.

This report collects and examines state-level programs that run afoul of the First Amendment’s nondiscrimination mandate. These programs enlist private organizations to advance a range of goals—education, job training, poverty alleviation, housing, health care—but exclude some organizations from participating because they are religious or limit their participation to “secular” or “nonsectarian” activities. Our report is not comprehensive. Rather, the examples highlighted here are part of a much wider problem that pervades local, state, and federal programs. We hope that this report will provoke a discussion about reforming public programs to comply with the Free Exercise Clause’s nondiscrimination principle and provide a road map for lawmakers and advocates concerned about the persistence of religious discrimination in public programs.

The U.S. Supreme Court has repeatedly emphasized that the First Amendment demands the equal treatment of religious institutions and believers. These decisions—culminating last year in Carson v. Makin (2022)—have made two things clear: first, that the Establishment Clause does not preclude religious institutions from cooperating with the government to advance public goals by participating in public programs that extend benefits to private organizations on a religion-neutral basis; and second, that when the government adopts such a program that extends public benefits to secular private organizations, the Free Exercise Clause prohibits the government from excluding religious organizations or requiring them to secularize in order to participate.

Unfortunately, as the Becket Fund for Religious Liberty recently observed:

Despite these developments, lower courts and government officials at many levels seem to have a shag-carpet understanding of the Establishment Clause: one that is stuck in the 1970s and has not been updated since. Under this view, allowing religious speech [and organizations] . . . in government-funded programs is constitutionally dangerous, and the safest course for local officials is to exclude [them]. That mistaken view . . . has consequences.[1]

This is a report about one category of those consequences. Specifically, this report documents that, despite the Supreme Court’s repeated admonitions that the government cannot refuse to extend otherwise available benefits to organizations because they are religious—or do religious things—many dozens, likely even hundreds, of public programs at all levels of government continue to do exactly that.

Why do these problematic program restrictions stay on the books? In some cases, hostile government officials may be intentionally disregarding the Court’s decisions; many more likely are uninformed about them or simply have yet to consider their implications for the programs that they administer; still others may be unaware of how programs restrict the participation of religious providers. In all cases, unnecessary and unconstitutional religious discrimination remains—like the shag carpet in Grandma’s rec room—a dated, ugly reminder of a long-since-abandoned understanding of the First Amendment’s religion clauses.

This report provides a snapshot of state programs that contain provisions running afoul of the First Amendment’s neutrality principle as clarified last year in Carson v. Makin, which found that a state’s exclusion of faith-based schools from a tuition assistance program violated the Free Exercise Clause.[2] We do not purport to provide a comprehensive account of the extent of the problem. This report is based primarily on searching more than a dozen states’ statutes and regulations for the terms “sectarian,” “nonsectarian,” “religious,” and “secular.”[3] Occasionally, we include examples from other states that we did not research systematically.

Based on how pervasive we found the exclusion of religious providers to be, we suspect that these problems are present in many other jurisdictions and pervade regulations governing federal programs, as well. We also suspect that, in the states that we researched, a more comprehensive evaluation of program regulations and guidelines would reveal other problematic restrictions, including at the local level. We should note that, although we made an effort to ensure that all the restrictions discussed here remain “on the books,” it is possible that some are not currently enforced. Even if this is the case, eliminating them legislatively—or securing an official legal opinion about their unenforceability—is preferable to nonenforcement.

We hope that our report will provoke a discussion about reforming public programs to comply with the Free Exercise Clause, which would enable faith-based organizations to fully participate in advancing the common good. We also hope to provide a road map for lawmakers and advocates concerned about the persistence of religious discrimination in public programs.[4]

The history of the Supreme Court’s religion clause doctrine is long and convoluted, but a short summary is useful context. During the second half of the twentieth century, the Court issued several opinions that cast doubt on the constitutionality of extending government benefits to religious institutions. Although the Court never imposed a categorical ban on such church–state cooperation, the constitutional scale tipped in favor of excluding religious organizations from public programs. After Lemon v. Kurtzman (1971), the question of whether a given government action or program violated the Establishment Clause was subjected to the three-part “Lemon test.”[5] Under the Lemon test, a government program satisfied the Establishment Clause if it: (1) had a secular purpose; (2) did not have the primary effect of advancing religion; and (3) avoided “excessive entanglement” between government and religion.

The Lemon test was ahistorical, unworkable, and incoherent. In the last decades of the twentieth century, Establishment Clause doctrine began to shift, with the Court gradually replacing the test with a neutrality requirement.[6] In Zelman v. Simmons-Harris (2002), the Court upheld a publicly funded private-school-choice program despite the fact that more than 95% of participating students attended religious schools.[7] Zelman held that the Establishment Clause does not require the exclusion of religious organizations from programs that extend benefits to private organizations on a religion-neutral basis. The question remained, however, as to whether the Free Exercise Clause requires their inclusion.

The answer to that question came in three recent cases. First, in Trinity Lutheran Church v. Comer (2017), the Court held that Missouri violated the Free Exercise Clause by excluding a faith-based preschool from a state program that provided recycled tires for playground resurfacing.[8] Writing for the majority, Chief Justice John Roberts concluded that Missouri’s policy put Trinity Lutheran to an unconstitutional choice: “It may participate in an otherwise available benefit program or remain a religious institution.” Second, in Espinoza v. Montana Department of Revenue (2020), the Court held that the Montana Supreme Court violated the Free Exercise Clause when it invalidated, on state constitutional grounds, a private-school-choice program because it included faith-based schools.[9] Again writing for the majority, Roberts observed: “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

Trinity Lutheran and Espinoza left open a potential loophole that might justify the exclusion of religious providers from some public benefit programs. Both opinions concluded that the challenged policies discriminated against recipients based on their religious character (or status) but declined to say whether a state could refuse to provide funds that might be put to religious uses (for example, religious instruction). The chief justice acknowledged in both cases that this “status/use” distinction might be constitutionally irrelevant, but decided to leave that question for another day.

That day came in Carson v. Makin (2022). In Carson, the Court considered a challenge to a private-school-choice program for rural students in Maine. The program allowed participating students to use the public funds allocated for their secondary education at any school, public or private, as long as it was “nonsectarian.” Throughout the litigation, Maine argued that the exclusion of “sectarian” schools was not religious discrimination but rather reflected a desire not to fund religious instruction. Carson finally rejected the idea that there is a constitutionally relevant distinction between illicit discrimination based on religious status or character and licit discrimination based on religious use or conduct. Roberts, writing for the majority, observed that the Court has “never suggested that use-based discrimination is any less offensive to the Free Exercise Clause” than status-based discrimination.[10]

This is a good thing. The “religious status”/“religious conduct” divide was almost always a distinction without a difference because “being religious” usually means “doing religious things.” And, as Justice Gorsuch argued in a concurring opinion in Espinoza, the “Constitution . . . protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.”

The nondiscrimination rule articulated in Trinity Lutheran, Espinoza, and Carson—which we refer to as the Carson principle—is as follows: the government may not exclude private organizations from participating in public benefit programs either because they are religious or because they engage in religious conduct.

But are there any exceptions to this rule? As Justice Breyer asked in dissent in Carson, “What happens once ‘may’ becomes ‘must’?”[11] Must the government fund religious organizations to the maximum extent permitted by the Constitution? Does some “play in the joints” remain between what the Establishment Clause prohibits and the Free Exercise Clause requires?[12] We will not attempt to definitively answer those questions here. Instead, we offer two observations and two caveats about the application of Carson v. Makin to the programs discussed in this report.

The observations:

• First, the First Amendment does not require the government to extend public benefits to private organizations or to fund private activity at all. The Free Exercise Clause is triggered only when the government extends benefits to private secular organizations. At that point, the government must extend those benefits to qualifying religious organizations, as well as permit them to remain religious.
• Second, the First Amendment’s nondiscrimination principle applies with equal force to the exclusion of private organizations for their religious character and to the refusal to fund activities imbued with religious content. Therefore, rules limiting public funding to the “secular” or “nonsectarian” activities of religious organizations is as constitutionally problematic as excluding religious organizations altogether.

The caveats:

• First, the Supreme Court has narrowed, but declined to overrule, Locke v. Davey (2004).[13] Locke rejected a Free Exercise challenge to a Washington program that prohibited college scholarship recipients from using public funds to pursue ministerial studies. In Carson, the Court characterized Locke as reflecting the “historic and substantial state interest” against using “taxpayer funds to support church leaders” and found no evidence of a similar historical tradition against aiding private religious schools.[14] If presented squarely with the question, we suspect that the Court might well overturn Locke, but for now it appears to have cabined the scope of the holding to its facts. Even read capaciously, Carson suggests that Locke can justify refusing to extend public benefits to religious organizations and activities in the rare cases where long-standing historical practice (i.e., from the time of the Founding) supports their exclusion. We express no opinion on whether any programs identified here fall into that category, although, in some of them, religious exclusions seem to have been shaped by Locke. It is important to note that Locke does not hold that the exclusion of religious organizations from a program is constitutionally required but only that it may be—in very narrow circumstances—constitutionally permissible.
• Second, the Court’s 2002 decision upholding private-school choice in Zelman v. Simmons-Harris turned, in part, on the fact that funds flowed to religious schools only as the indirect result of parents’ independent decisions. Some hold the view that Zelman means that the government may fund religious activities only when the program at issue is one of private choice. This view is reflected in federal regulations that require faith-based organizations to provide only “nonsectarian” services when participating in so-called “direct-aid” programs.[15] This is not a correct reading of the law. The Establishment Clause and the Free Exercise Clause require government neutrality toward religion.[16] The indirect funding mechanism present in the parental choice programs at issue in Zelman, Espinoza, and Carson may make the constitutionality of the programs doubly clear, but the lack of an independent decisionmaker neither precludes the government from supporting religious providers in a public benefit program nor justifies their exclusion. In fact, the program at issue in Trinity Lutheran was a direct funding program, and, more recently, billions of dollars in Covid relief funds flowed to religious organizations through a variety of state and federal programs. Furthermore, a reading of the Establishment Clause that results in the government funding religious institutions, but not religious conduct, is directly contradicted by Carson’s rejection of the so-called status-use distinction as a justification for religious discrimination.

To summarize, the government may choose not to support private organizations and private activity at all, but when it chooses to do so, “may” becomes “must” in almost all cases. The government may neither exclude religious organizations from otherwise available public benefit programs, nor limit funding to secular activities as a condition of participating.

Next, we identify state programs that contain these provisions, running afoul of the Free Exercise Clause. Our research suggests that exclusions tend to be clustered in the same public-policy areas, including education, social services, historic preservation, and public-finance/community development policies. We found other religious exclusions, some unique to single states, that do not fall into any clear categories.

Charter Schools

Charter schools are privately operated and publicly funded schools that are legally designated “public schools” in all states. They are given permission to operate as charter schools and to receive charter school funding by a contract (a “charter”) between a private operator and charter school “authorizer” (called a “sponsor” in some states). In most states, charter school authorizers are government entities (typically school districts or state agencies), although some states allow private nonprofit organizations to act as charter school authorizers as well. Forty-five states authorize charter schools, which collectively enroll more than 3.7 million students, or 7.5% of U.S. public school students.[17]

All states’ laws require charter schools to be secular schools, and many states prohibit charter schools from being operated by, or affiliated with, a religious entity. In 2023, Guam became the first U.S. jurisdiction to authorize religious charter schools legislatively, after its attorney general issued an opinion letter concluding that doing otherwise would violate the Free Exercise Clause.[18] Also this year, the Oklahoma Virtual Charter School Board authorized the nation’s first religious charter school, St. Isidore of Seville Catholic Virtual School. The board’s decision reflected a considered judgment that Oklahoma laws prohibiting religious charter schools violated the First Amendment. The board’s approval has been challenged in court.[19]

One of us, Nicole Stelle Garnett, has written extensively about religious charter schools, arguing that laws prohibiting them likely run afoul of the First Amendment.[20] We will not repeat those arguments here. Because Carson’s nondiscrimination principle applies only when the government extends public benefits to private actors, the constitutionality of laws prohibiting religious charter schools turns on whether charter schools are, for federal constitutional purposes, private or government actors (in legal terms, whether they are “state actors” or not). Circuit courts are divided on this question, which is made more complex, given the variation in the way that charter schools are regulated and controlled across the states.

Our research, however, identified an issue that has not been widely discussed in debates about religious charter schools. Several states, including Minnesota, Missouri, Ohio, and South Carolina, allow religious colleges and other religious nonprofits to act as charter school authorizers (and all these states have at least one religious organization that does so). But at least one state, Idaho, permits private, secular—but not religious—nonprofits to authorize charter schools. Idaho gives any “private, nonprofit, Idaho-based nonsectarian college or university” the option of authorizing charter schools.[21] Minnesota, oddly, allows only secular nonprofit organizations to serve as charter school authorizers but permits religious colleges and universities to do so.[22] These restrictions are constitutionally suspect. While the First Amendment allows states to limit charter school authorization power to government entities, if the Constitution permits some states to empower religious organizations to authorize charter schools, it is difficult to justify prohibitions on their doing so in other states with private authorizers.

Special Education

The federal Individuals with Disabilities Education Act (IDEA) guarantees disabled students a “free and appropriate education,” including “special education and related services.” IDEA permits school districts to place a disabled student in a private school when the student’s public school district is unable to provide a “free and appropriate public education” (FAPE).[23] Under these circumstances, the district is responsible for covering the full cost of the private placement. Parents who unilaterally place their children in private schools have the option of challenging the adequacy of the school district’s services; if they succeed in demonstrating that the services do not satisfy the FAPE requirement, the district also will be liable for covering the cost of the private education.[24] Additionally, all parents have the right to place their child in a private or religious school at their own expense. For privately placed students, the school district where the student resides has more limited obligations to provide “equitable” services to them, either directly or by contract with a private entity.[25] Federal regulations provide that “special education and related services provided to parentally placed private school children with disabilities, including materials and equipment, must be secular, neutral, and nonideological.”[26]

While federal law does not prohibit districts from placing disabled students in religious schools, or funding the private placement of students in religious schools, some states do. For example:

• Virginia empowers school districts and other local governments to expend funds to provide special education under contract with any “public or private nonsectarian school, agency, institution” or “nonsectarian child-day programs.”[27]
• New Jersey maintains a list of secular schools approved for public placements of disabled children.[28] The state also empowers local governments to appropriate funds “to any approved, privately operated, nonprofit organization whose services are nonsectarian . . . for the purpose of defraying the necessary expense incident to the diagnosis, treatment, training, and rehabilitation of persons with . . . disabilities.”[29]
• North Dakota law provides that, when a school district cannot provide sufficient services for a disabled child, the district “shall contract with . . . a private accredited, nonsectarian, nonprofit institution . . . located within or outside the state which has proper facilities for the education of the student.” North Dakota law further defines “nonsectarian” as “not affiliated with or restricted to a particular religion.”[30]
• Montana law provides for the education of students in “day-treatment programs” at “private, nonsectarian schools.”[31]

One such exclusion is currently being challenged in federal court by Orthodox Jewish families seeking to have their children placed in Jewish schools. California law explicitly prohibits the public placement of disabled children in religious schools (while allowing placements in secular schools).[32] In August 2023, a federal district court rejected these claims, concluding that the Carson principle does not apply to children placed by public agencies in private schools.[33]

Over the past few decades, publicly funded universal pre-K has become a priority among many education reformers. Currently, 16 states and Washington, DC, have a publicly funded pre-K program that extends eligibility to all age-appropriate students.[34] Many other states have more limited programs that serve low-income students or students with disabilities. Some major cities, including New York City, also have publicly funded pre-K programs. While pre-K education in some of these programs is provided exclusively in public schools, many states contract directly with private pre-K providers or allow districts to do so. Understanding the regulations imposed on private providers participating in publicly funded pre-K programs is challenging because many restrictions on operators are found in policy guidance documents or contracts with providers. We sought the relevant restrictions on universal pre-K programs, but a comprehensive evaluation was beyond the scope of this report.

Our research suggests that at least one state—Oregon—explicitly limits participation in its universal pre-K program to “nonsectarian” private providers.[35] Many other states allow faith-based providers to participate but prohibit all religious content in their education programs. For example:

• Georgia’s pre-K providers’ operating guidelines state: “No part of the Pre-K instructional day may be religious in nature. If an approved curriculum has both a secular and religious version, the secular version must be utilized in the Pre-K program. . . . No Pre-K funding may be utilized for religious instruction.”[36]

• Alabama’s pre-K program guidelines provide: “The . . . Pre-K day may not be religious in nature; however, a moment of silence is acceptable. Activities religious in nature must take place outside of the . . . school day.”[37]
• The California State Preschool Contract Terms and Conditions state that private pre-K “[c]ontractors shall not provide nor be reimbursed for preschool services which include religious instruction or worship.”[38]
• New Mexico’s pre-K Program Standards require program administrators to “specify and ensure that PreK curriculum does not include any religious instruction or material.”[39]
• Arkansas’s “A Better Chance” pre-K program regulations require that all “instruction and instruction materials must be secular and neutral with respect to religion.”[40]
• Wisconsin regulations mandate: “Agreements with faith-based programs must ensure a nonsectarian environment, curriculum, and program for all students.”[41]

New York City’s large pre-K program, which enlists hundreds of faith-based preschool providers, illustrates how these restrictions work on the ground. The program’s handbook for providers prohibits all religious instruction and further provides that “instruction may not promote or inhibit any particular religion, or religion generally.”[42] Teachers are prohibited from leading students in prayer (although they are directed to permit students to engage in voluntary prayer before meals). Providers may discuss religious figures only in a secular manner and employ religious texts only “when at least three (3) different cultures or traditions are represented as part of a developmentally appropriate and secular education program.” Religious providers are instructed to cover all religious words and symbols “to the extent possible” and precluded from using religious symbols on school uniforms. Holiday celebrations are permitted but may not promote any specific religion or include a depiction of religious figures.

Some public pre-K programs permit religious instruction but impose regulations that have the effect of excluding many religious providers by, for example, prohibiting participating preschools from preferring coreligionists in hiring or admission or imposing student codes of conduct that comport with religious practices and beliefs. There have been successful challenges to these restrictions, however. In October 2023, a federal court invalidated the imposition of such restrictions on Colorado’s new universal pre-K program, finding that they violate the Free Exercise rights of religious providers.[43]

In our research, we discovered a handful of restrictions on other pre-K–12 programs that do not fit neatly into any of the categories above.

For example, the Texas Education Agency is directed to “ensure that the grant activities funded under the Dropout Recovery Pilot program are non-sectarian.”[44] Texas also provides grants for the “minor remodeling” of private child-care centers but places additional restrictions on religious child-care centers, providing that “sectarian agencies or organizations” may expend funds “for minor remodeling only if necessary to bring the facility into compliance with . . . health and safety requirements.”[45]

Alaska’s Correspondence Study Program provides resources to enable parents to purchase “nonsectarian services and materials from a public, private, or religious organization.”[46]

Arkansas’s regulations governing distance learning require that all providers be “nonsectarian.”[47] The same is true of remote learning providers in Florida.[48] Unfortunately, the latter restriction is also imposed on online providers in Florida’s Family Empowerment Scholarship program, which otherwise funds a wide array of faith-based options.[49]

Missouri provides loans for juniors and seniors to cover tuition at accredited private secondary schools but states: “Loan proceeds will not be available for any secondary school instruction which is sectarian in nature.”[50] Missouri also directs that support services for “high risk students . . . shall be provided at sites other than sectarian nonpublic schools.”[51]

States extend public benefits to private colleges and universities to advance a variety of goals. Many states have “dual enrollment” programs that allow high school students to take college courses at public expense; some of these programs impose religious restrictions. For example:

• Oregon’s Expanded Options Program allows high school students to enroll full- or part-time in college classes, at public expense, provided that the classes are “nonsectarian.”[52]
• Idaho imposes similar restrictions on dual enrollment, permitting high school students to take “nonsectarian” college classes at public expense.[53]
• Ohio’s College Credit Plus Program allows students to enroll in college full- or part-time “to complete nonsectarian, nonremedial courses for high school or and college credit.”[54]

Some states impose similar restrictions on college work-study:

• The Texas College Work Study and TXWORKS Internship Programs both require students to engage in “nonsectarian” activities.[55]
• The regulations governing Indiana’s Employment Aid Readiness Network (EARN) College and High School Work-Study Program state that “work performed by a student under this chapter shall not involve any partisan or nonpartisan political or sectarian activities.”[56]
• Idaho’s work-study program provides that “private accredited institutions of higher education which are controlled by sectarian organizations, and students attending such institutions, may participate only in the educational need, off-campus work experience portion of this program and such off-campus employment may not be located at, or be performed on behalf of, a sectarian or religious establishment.”[57]
• Montana’s work-study program contains a relatively narrow restriction on activities that “involve the construction, operation, or maintenance of any facility as is used or to be used for sectarian instruction or as a place of worship.”[58]

We also found problematic restrictions on the use of publicly funded scholarships. For example:

• The Alabama Student Grant program provides funds for students to use at higher-education institutions in the state; these funds can be used to attend “sectarian” institutions only if they “perform essentially secular education functions.” The program prohibits public funds from being used for “religious, sectarian or denominational purposes” and requires participating universities to carefully segregate funds to ensure that this rule is enforced.[59]
• Oregon law allows the state to contract with private colleges and universities for “nonsectarian educational services,” including “approved and registered course work in nonsectarian subjects completed by undergraduate students.”[60]
• Two different Florida state scholarship programs limit participation to “independent nonprofit universities” that—oddly—satisfy the Lemon test. Students in both programs may not pursue a “degree in theology or divinity.”[61] (The latter restrictions, which track Locke v. Davey, may be constitutionally permissible but certainly are not constitutionally required.)

Several states provide funding for capital expenditures and improvements at higher-education institutions but prohibit their use for “sectarian” purposes. Examples include:

• Texas’s County and Municipal Higher Education Improvement Bonds Program allows local governments to provide bonds for higher-education institutions to “acquire, construct, or improve land, buildings, or other permanent improvements.” All private and public colleges and universities are eligible to participate, other than those “operated exclusively for sectarian purposes.”[62]
• The Missouri Health and Educational Facilities Authority Act provides loans for educational facilities, except “property used or to be used for sectarian instruction or study.”[63]
• Alabama’s Private Colleges and Universities Facilities Authorities Act provides revenue bonds for higher-education financing but states that eligible projects “shall not include any facility used or to be used for sectarian instruction or as a place of religious worship nor any facility which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denomination.”[64]
• Virginia funds for Nonprofit Institutions of Higher Education Projects cannot be used for “any facility used for sectarian instruction,”[65] and funding for private historically black colleges and universities can go only to “nonsectarian” institutions.[66]

Outside the education context, many states impose limitations on health care and social-services programs that run afoul of the Carson principle.

In Ohio, a county can enter into an agreement to provide health-care services for indigent persons at private hospitals but not a “sectarian institution.”[67]

Georgia law prohibits the distribution of state or local funds to “any church, sect, cult, religious denomination, or sectarian institution”[68] and defines a charitable organization as “[n]ot a religious organization except that a religious organization is not disqualified to the extent that it operates a health, welfare, educational, or environmental restoration or conservation function on a nonsectarian basis with a distinct and separate budget for this function.”[69] (The state also requires the state corrections department to reject “requests for volunteer services of inmates” that “will aid or benefit, directly or indirectly,” any of these categories as well.)[70] Additionally, the OneGeorgia Authority ESBD Loan Guarantee Program, which provides loan guarantees to small businesses in rural counties, excludes “[b]usinesses principally engaged in teaching, instructing, counseling or indoctrinating religion or religious beliefs, whether in a religious or secular setting,” unless this prohibition is “waived by the OneGeorgia Authority for good cause.”[71]

In Alabama, family resource centers must provide community services that are “community-based, nonsectarian, and nondiscriminatory.”[72]

In its section on work activities as a facet of public welfare assistance, Alaska defines “useful public purpose” as “services rendered with or without charge to the public, other than service related to religious proselytism or evangelism.”[73]

To receive funds, a Louisiana parish voluntary council on the aging must be “non-profit making and politically non-partisan and non-factional and shall be non-sectarian.”[74]

Florida’s Batterer Intervention program on domestic violence excludes from the program’s curriculum “[f]aith-based ideology associated with a particular religion or denomination.[75]

For its Life Choices Lifeline Program, a program for parents of children under two years of age, Arkansas requires that funding be used for “nonsectarian purposes only.”[76] Similarly, in its Department of Workforce Training Trust Program, Arkansas prohibits the use of funds for “employment or training in sectarian activities.”[77] With its Older Worker Community Service Employment Program, Arkansas excludes from grant recipients those “projects involving the construction, operation, or maintenance of any facility used or to be used as a place for sectarian religious instruction or worship.”[78] And for its positive youth development grants, Arkansas warns: “No grant funds may be used to support religious services, instruction or programming at any time.”[79]

Similarly, in Indiana, those contracting with the Division of Family Resources must ensure that the “services under contract shall be nonsectarian in nature.”[80]

Public Finance and Community Development

Many states have programs that support the construction and renovation of private health-care facilities but limit the availability of these funds. For example:

• Alabama’s municipal special health-care facility authorities are precluded from supporting facilities that are used “to promote any sectarian purpose or to advance or inhibit any religious activity” or facilities “operated . . . in a manner so pervaded by religious activities that the secular objectives . . . cannot be separated from the sectarian interests.”[81]
• The statute establishing Montana’s Facility Finance Authority, which provides not-for-profit health-care providers with access to low-cost capital, excludes “a structure used or to be used primarily for sectarian instruction or study or as a place for devotional activities or religious worship.”[82]
• If an Indiana county wants to appropriate money for a nonprofit hospital, it must ensure that the “board of managers or board of trustees . . . is nonsectarian and nonpolitical.”[83]
• Ohio similarly limits payments of public funds to religious or sectarian hospitals.[84]

Outside the health-care context, Arkansas’s Older Worker Community Service Employment Program excludes from grant recipients those “projects involving the construction, operation, or maintenance of any facility used or to be used as a place for sectarian religious instruction or worship.”[85]

Virginia exempts from industrial development powers those institutions “operated exclusively for religious purposes.”[86] Fairfax County, Virginia, prohibits the use of public funds to “construct, acquire, rehabilitate, maintain or restore structures . . . owned by ‘pervasively sectarian’ organizations.”[87] The Virginia Industrial Development Revenue Bond Act funds a variety of facilities used by “nonprofit nonreligious organizations,” including to promote the “equine industry” and “equine events and activities.”[88]

Charitable Giving

States also limit donations to charitable organizations. For example:

• Georgia law permits state employees to make voluntary donations to charitable organizations but “[n]ot a religious organization.” It further states that “a religious organization is not disqualified to the extent that it operates a health, welfare, educational, or environmental restoration or conservation function on a nonsectarian basis with a distinct and separate budget for this function.”[89]
• The Alabama Administrative Code excludes “religious activities” from consideration of health and
  human-care services under its state employee combined charitable campaign program.[90]
• Arkansas limits donations from its waterworks commissions to “local community chests or other citywide nonsectarian, incorporated, charitable organizations.”[91]
• Louisiana law provides that “the governing body of the parish or the city council of the city, acting separately or together, may in their discretion, select one or more duly incorporated and well recognized charitable associations, which must be non-sectarian, to disburse the revenues arising from the respective alms funds of the parish and city.”[92]
• Virginia law empowers local governments to make appropriations to support charitable institutions that provide services to their residents, provided that the recipient is not “controlled in whole or in part by any church or sectarian society.” The law goes on to provide, however, that “the words ‘sectarian society’ shall not be construed to mean [the YMCA, YWCA], Habitat for Humanity or the Salvation Army.”[93]

Historic Preservation

Some problematic statutes concern history and/or historic preservation. In deciding which properties qualify for the Virginia Landmarks Register or the National Register, the Virginia Administrative Code explains that religious properties must be evaluated on secular terms.[94] Likewise, for historic preservation grants, Indiana requires that applicants be “a municipal corporation or a corporation that has no affiliation with religion.”[95]

For war memorials, Indiana restricts memorial corporations as follows: “The money, property, or income owned or held by a memorial corporation organized under this chapter may not be owned, held, or used to promote the interest or teachings of a specific church, sect, school, or creed.”[96]

Miscellaneous Statutes

Not falling easily into any of the categories above are miscellaneous statutes that reference impermissible nonsectarian charitable distinctions.

For example, an Alabama law governing the distribution of funds from greyhound racing days excludes sectarian organizations.[97] And Montana permits a nonprofit organization “that does not have as its primary focus sectarian activities, including but not limited to activities aimed at promoting the adoption of one or more religious or political viewpoints” to participate in a specialty license-plate program.[98] Arkansas’s Small Museum Grant Program excludes any “project that serves a religious purpose.”[99] And both Virginia and Montana provide a fuel tax rebate for school buses, unless they are used to transport children to religious schools.[100]

Although the research conducted for this report provides only a snapshot of programs that violate equal treatment of religious organizations, it strongly suggests a pervasive problem across many areas of public policy. As a first step, state attorneys general, the general counsels of state agencies, and attorneys representing local governments should comprehensively review public programs to identify restrictions that run afoul of the Carson principle. Religious liberty advocates can do the same. After problematic restrictions are identified, several steps could be taken to eliminate them.

Legislative Change

One way to address problematic restrictions on public programs is to eliminate them legislatively. The most comprehensive way to address the problem would be for a state legislature to adopt a single piece of legislation that clarifies that all state programs must be interpreted so as to comply with the First Amendment. Such a statute might provide as follows:

Notwithstanding any other provision of law, no state or local program in [STATE] that extends public benefits to private organizations shall exclude from participation any otherwise qualified entity because of its religious character or the religious nature of its activities. All programs in [STATE] that extend public benefits to private organizations shall be interpreted to comply with the Free Exercise Clause of the First Amendment to the Constitution of the United States.

Alternatively, the legislature might adopt a single piece of legislation that identifies, lists, and removes problematic restrictions in individual programs. In both cases, of course, the legislature should attend to state constitutional provisions that limit the form of legislation (such as clear title and single subject rules) or the state’s ability to preempt local legislation (such as home rule protections). State legislation might also tackle problematic programs or categories of programs individually.

Nonenforcement and Attorney General Opinions

Another path forward is executive action. State officials charged with administering programs that impose unconstitutional religious restrictions could simply refuse to enforce them, as happened earlier this year when the Oklahoma Statewide Virtual Charter School Board approved the nation’s first religious charter school. State officers, program officials, or religious organizations negatively affected by program exclusions (if permitted) might seek an opinion about the constitutionality of programmatic restrictions from the state’s attorney general.

A state attorney general also could, on his or her own initiative, issue an opinion letter explaining that, after Carson, rules that single out faith-based entities and religious conduct for adverse treatment are unconstitutional and will no longer be enforced. State attorneys general might also consider clarifying state constitutional provisions purporting to limit public funding of religious organizations, as the attorney general of Texas recently did, regarding that state’s “Blaine Amendments,” which, the attorney general wrote, “violate the First Amendment . . . and are unenforceable.”[101] A state’s interest in enforcing state constitutional provisions demanding more church–state separation than the federal Establishment Clause calls for is not weighty enough to justify the exclusion of religious organizations from public benefit programs. The court has made abundantly clear that free exercise rights take priority over state law.

This option is particularly compelling in circumstances where a state’s attorney general is more sympathetic to faith-based entities than the state legislature. Presumably, attorneys general who are good stewards of taxpayer resources will work to quickly offer opinions that obviate the need for litigation.

Litigation

Finally, religious organizations affected by unconstitutional program restrictions can challenge them in court. For example, after Christian schools and families challenged Minnesota’s Post-Secondary Enrollment Options program, which prohibits students from using state-funded scholarships at colleges requiring students to agree to a statement of faith, the state agreed to stop enforcing the prohibition.[102] We anticipate many such lawsuits in the months and years to come.

The need to resort to litigation is unfortunate. Not only is litigation costly and time-consuming, both for plaintiffs and for the states subject to the litigation, but many faith-based entities may be unaware of their religious liberty rights and unnecessarily subject themselves to rules restricting their programs, such as the requirement that programs receiving public funds be nonsectarian.

The U.S. Supreme Court has made it clear that the Free Exercise Clause protects the right of faith-based organizations to cooperate with governments to advance the common good in public programs—that the government is precluded from excluding them from participating, or requiring them to secularize in order to participate. Despite the Supreme Court’s admonitions, many state and local government programs continue to put unconstitutional restrictions and prohibitions on faith-based organizations.

The programs highlighted in this report are likely only the tip of an unconstitutional iceberg. We hope that our effort to shed light on the persistence of programmatic restrictions that run afoul of the principle established last year in Carson v. Makin will encourage policymakers to correct these constitutional errors expeditiously. Policymakers can start by correcting the programs discussed here, but that will be only the beginning.

Nicole Stelle Garnett is a senior fellow at the Manhattan Institute who also writes regularly for City Journal. She is the author of Lost Classroom, Lost Community: Catholic Schools’ Importance in Urban America (University of Chicago Press, 2014) and Ordering the City: Land Use, Policing, and the Restoration of Urban America (Yale University Press, 2009), as well as numerous articles on education policy, urban development, and land-use planning.

Garnett is the John P. Murphy Foundation Professor of Law at the University of Notre Dame, where she is also a fellow of the Institute for Educational Initiatives.

Prior to joining the faculty at Notre Dame in 1999, Garnett served as a law clerk for Associate Justice Clarence Thomas of the Supreme Court of the United States and Judge Morris S. Arnold of the U.S. Court of Appeals for the Eighth Circuit. She also practiced law at the Institute for Justice, a non-profit public interest law firm in Washington, D.C., where she helped to defend the inclusion of faith-based schools in private-school choice programs. She holds a B.A. in political science, with distinction, from Stanford University and a J.D. from Yale Law School.

Tim Rosenberger is a legal fellow at the Manhattan Institute. Tim holds a JD/MBA at Stanford University, where he was president of the Federalist Society and on Law Review, and an LL.M. from the University of Vienna. His work on education policy provided the foundation for the New Workforce Development Council, which seeks to move America’s education system towards competency-based certifications of learning that provides pathways to purposeful work. Rosenberger’s policy interests lie at the intersection of law, faith, education, and business—with a particular focus on leveraging policy to help America’s overlooked populations create lives of dignity.

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