The Freedom From Religion Foundation is condemning a sweeping new Department of Justice legal opinion that seeks to dramatically expand the ability of religious groups to use federal taxpayer dollars for all sorts of religious activities.
The Aug. 25 memorandum from the Justice Department’s Office of Legal Counsel, titled “Constitutionality of Religious Restrictions on the Use of Federal Funds,” claims that federal restrictions preventing taxpayer dollars from being used for explicitly religious purposes are presumptively unconstitutional. The opinion essentially dictates that the First Amendment’s Free Exercise Clause trumps the Establishment Clause, which Thomas Jefferson famously explained builds “a wall of separation between church and state.”
“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,” says FFRF Co-President Annie Laurie Gaylor. “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 opinion focuses on federal programs administered by the Department of Health and Human Services, including programs involving child care, substance abuse treatment, welfare services and other social services. Existing federal laws still restrict the use of direct government funding for “sectarian worship, instruction, or proselytization.” HHS regulations require explicitly religious activities to be offered separately in time or location from federally funded services and make participation voluntary.
The memo complains, for example, that a church operating a federally supported soup kitchen cannot conduct communal prayer as part of the taxpayer-funded meal service. Nor can a religious organization providing federally funded employment or family programs incorporate religious teachings into those programs. The Office of Legal Counsel contends that those safeguards discriminate on the basis of religion.
Those implications extend far beyond soup kitchens.
The opinion states that religious recipients cannot constitutionally be required to “forgo[], segregat[e], or bifurcat[e] their religious activities” in order to participate in a generally available federal program. It argues that a secular organization may promote its values through a federally funded sex education program, for example, so a religious provider must likewise be permitted to teach its religious views about sexuality.
Perhaps most shocking, the memo offers the example of a government-funded STEM program. While the government could limit funding to STEM education, the opinion asserts that it would still be “obligated to allow religious providers to integrate their faith into STEM instruction,” including by teaching “the relationship between faith and science or the theological basis for mathematics.”
“That example lays bare just how extreme this theory is,” says FFRF Deputy Legal Director Liz Cavell. “Equal eligibility for a government benefit is one thing. Claiming a constitutional right to convert the government-funded program itself into a vehicle for religious teaching is something else entirely.”
The opinion relies heavily on the Supreme Court’s recent decisions in Trinity Lutheran v. Comer, Espinoza v. Montana Department of Revenue and Carson v. Makin, which prohibit governments from excluding religious institutions from certain generally available public benefit programs. But the DOJ opinion goes significantly further. Carson, for instance, involved tuition assistance reaching religious schools through private parental choice. The memo acknowledges that distinction but declares that the mechanism by which government funding reaches a religious institution is “constitutionally irrelevant.”
The memo similarly attempts to sweep aside longstanding Supreme Court precedent recognizing special Establishment Clause concerns when the government makes direct payments to religious institutions. Rather than point to a Supreme Court decision expressly overruling that precedent, the Office of Legal Counsel calls the traditional distinction between direct and indirect government funding “fruit of the poisoned Lemon tree.” (This is a reference to the Lemon Test, which the current Supreme Court recently abandoned and which declared that to be constitutional, a government action or program required a secular purpose, should neither advance nor inhibit religion and must avoid excessive government entanglement with religion.)
FFRF warns that abandoning that distinction between direct and indirect funding will transform federal social service programs into government-financed vehicles for evangelism. FFRF identifies serious threats to social service recipients:
• The programs implicated by the opinion serve some of society’s most vulnerable people. A person seeking food, shelter, child care, suicide prevention or addiction treatment should not have to navigate taxpayer-funded religious exercises to obtain government-supported assistance.
• The memo targets protections against religious discrimination. It would erase existing HHS rules prohibiting recipients of direct federal assistance from discriminating against beneficiaries because of their religion, religious beliefs, refusal to hold a religious belief or refusal to participate in a religious practice.
• The opinion objects to a federal child care provision barring discrimination, characterizing those protections as burdens on religious exercise. Currently, certain heavily government-funded religious providers may not discriminate on the basis of religion in specified employment and admissions decisions.
Religious organizations could increasingly claim both a constitutional right to conduct religious activities with taxpayer funding and a religious right to discriminate while administering publicly funded programs.
The opinion’s historical analysis is equally troubling. The memo invokes early federal programs that financed Christian missionaries working among Native Americans, including federal support for clergy, religious instruction and church construction. These shameful programs are hardly evidence of a settled constitutional tradition permitting government-funded religion; they were part of a broader federal policy using Christianity to suppress Indigenous religion, peoples and cultures, and advance explicitly sectarian aims that are constitutionally indefensible today.
Most immediately, the opinion could pave the way for HHS to stop enforcing statutes Congress enacted. The Office of Legal Counsel concludes that the religious restrictions are unconstitutional and severable from their underlying programs, and expressly contemplates HHS adopting a policy of nonenforcement and reporting that decision to Congress.The threat also extends beyond HHS. The opinion repeatedly frames its conclusions broadly, declaring that restrictions on the anticipated religious use of funds in “generally available federal funding programs” are presumptively unconstitutional.
FFRF will closely monitor HHS for changes to its regulations, grant requirements and beneficiary protections, as well as any decision to refuse enforcement of existing federal law.
“James Madison, the primary architect of our godless Constitution, famously (and successfully) argued that citizens should not be forced to pay ‘even three pence’ in support of religious establishments. He’d be rolling in his grave at the memo’s outrageous distortion of constitutional law,” Gaylor concludes.
The Freedom From Religion Foundation is a U.S.-based nonprofit dedicated to defending the constitutional principle of separation between state and church and educating the public on matters relating to nontheism. With about 41,000 members, FFRF is the largest association of freethinkers (atheists, agnostics and humanists) in North America. For more information, visit ffrf.org.
