Religious organizations in the United States have historically been allowed to receive federal grants to fund educational programs and social services initiatives. However, restrictions limit their use of those funds for explicitly religious purposes, such as proselytizing, worship, and religious instruction.
An opinion filed last week by the Justice Department’s Office of Legal Counsel (OLC), however, has opened the door to rescinding that longstanding restriction.
The prohibition against using public funds for religious purposes was shaped in part by a 1971 Supreme Court decision that guarded against excessive government entanglement in the affairs of faith-based organizations. Government funding for religious nonprofits was then placed under scrutiny, as federal grants require extensive reporting to hold recipients accountable for how funds are spent. This created a system in which religious nonprofits received federal grants for secular programs, which were separated from the religious aspects of their work.
Last week’s OLC opinion argued that this framework was abandoned by the 2022 Supreme Court decision that ruled in favor of a high school football coach who was placed on administrative leave after he led prayers on the field after a game. The opinion states that the Establishment Clause of the First Amendment doesn’t require restrictions “on either the religious status of a program provider or anticipated religious uses of [federal] funds.” The opinion also argued that restrictions that “discriminate based on anticipated religious use” violate the Free Exercise Clause.
First Liberty, the conservative religious liberty legal organization that represented the coach in the Washington case, hailed the opinion as a victory. In a statement, the organization said it hopes the Justice Department opinion will “lead to a future First Liberty Supreme Court victory.” The Freedom From Religion Foundation (FFRF), however, warned against what the opinion could portend.
“The First Amendment does not require the government to bankroll prayer, preaching or proselytizing, and FFRF will vigorously oppose efforts to turn federal programs into taxpayer-funded ministries,” FFRF Co-President Annie Laurie Gaylor said in a statement. “Faith-based organizations are free to practice and promote their religion, but religious freedom does not come with a right to have taxpayers pick up the tab.”
The OLC opinion, which specifically addresses programs funded by the U.S. Department of Health and Human Services, is available here.
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