On August 25, the Department of Justice’s Office of Legal Counsel (OLC) issued a landmark opinion: it directs federal agencies to stop enforcing rules that require faith-based providers to refrain from engaging in religious conduct as a condition of participating in federal programs. The order is great news for countless religious charities, social service agencies, and schools.
The Supreme Court has made it clear that such rules are unconstitutional. When the government extends public support to private organizations, the First Amendment’s Free Exercise Clause prohibits it from denying such support to groups that engage in religious activity. Yet federal agencies have continued to enforce these rules in dozens upon dozens of federal programs.
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The OLC’s legal directive was unmistakable: federal agencies must stop enforcing such restrictions. All that remains now is for states and all levels of government to follow the OLC’s lead in respecting the First Amendment’s religious freedom protections.
The OLC, which provides authoritative legal advice to executive branch agencies, issued the opinion after the Department of Health and Human Services (HHS) asked whether religious restrictions on the use of federal funds for “charitable choice” programs are unconstitutional. These programs fund classic public benefits—child care, homeless shelters, substance-abuse treatment, food banks, and more. Federal law currently permits religious providers to participate only if they promise not to use public funds for religious conduct such as “sectarian worship, instruction, or proselytization.” Even when a religious provider achieves the purpose the program is designed to serve, the federal government provides funding only when the services are secular.
The OLC concluded that these rules violate the First Amendment and directed HHS to stop enforcing them now—without waiting for Congress to repeal them or a court to strike them down. The OLC’s advice emphasized that the legal principle applies to all federal programs, not just the ones HHS asked about. “Religious restrictions on generally available federal funding programs are presumptively unconstitutional,” the opinion notes. This suggests that the many federal laws and regulations imposing similar restrictions on a wide range of activities, especially education, are unconstitutional. We hope that the OLC will take on these rules in future opinions.
The OLC’s action follows initiatives by several states, including Florida, Oklahoma, and Iowa, to remove or stop enforcing similar unconstitutional rules, but far more work remains. Through our Religious Equality project, we have identified hundreds of federal and state laws and regulations—relics of a bygone constitutional era—that continue to withhold public benefits from individuals and organizations because of their religious identity or practices.
And some states are even strengthening their unconstitutional rules. The day after the OLC issued its sweeping opinion letter, the California Assembly approved legislation that would require the government to withhold funds from special-needs children when the schools educating them incorporate religious instruction. Under existing federal law, when a public school district fails to provide a disabled child with an education that serves his or her needs, parents may place the child in an appropriate private school and seek reimbursement for the cost of the education that public schools failed to deliver. California may soon mandate a reduction in the amount of that reimbursement when families choose schools that incorporate religion—even when the school is providing precisely the education the child needs. If a child needs story time, and the school reads a Bible story, California now says that it will reduce the reimbursement. Religion, and religion alone, is singled out for disfavor.
Never mind that a federal appellate court already held that other attempts by California to exclude religion from its special education system violate the First Amendment. And never mind that a federal court has previously rejected a similar effort in New York to carve religious instruction out of special-needs reimbursement. In California, a child’s needs are secondary to the state’s aversion to religion.
That the battle for religious equality persists is both exasperating and devastating: exasperating because these exclusions violate the First Amendment; devastating because the consequences fall on real people. Religious institutions looking to serve vulnerable citizens—often where the government itself has failed—lose access to critical resources needed to carry out that mission if they remain true to their religious commitments. And in being told that public benefits available to everyone else are somehow beyond their reach because of what they believe, faith communities are relegated to second-class citizens.
Officials at all levels of government should follow the OLC’s lead and put a stop to unconstitutional religious discrimination. For local or state governments that do not, litigation—whether by families or via federal civil-rights enforcement—will be necessary to ensure that religious organizations enjoy the freedom the First Amendment guarantees.