Evaluating Federal Financial Assistance Under the Constitution’s Religion Clauses

Congressional research reportSep 9, 2020

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Evaluating Federal Financial Assistance Under

the Constitution’s Religion Clauses

September 9, 2020

Congressional Research Service

https://crsreports.congress.gov

R46517

SUMMARY

Evaluating Federal Financial Assistance Under

the Constitution’s Religion Clauses

R46517

September 9, 2020

Valerie C. Brannon

Federal and state governments have long offered support to religious organizations in the form of

Legislative Attorney

tax exemptions, the provision of general services, or more targeted assistance such as lending

textbooks or providing construction funds to religiously affiliated schools. And, conversely,

governments concerned about the separation of church and state have imposed restrictions to

prevent government funds from aiding religious entities. As the Supreme Court has recognized,

however, special constitutional concerns are raised both when the government provides money to religious organizations and

when it excludes religious entities from general aid programs.

Government funding and non-funding of religious institutions implicates both of the U.S. Constitution’s two Religion

Clauses. First, the Establishment Clause, which bars the government from making any “law respecting an establishment of

religion,” has been interpreted to limit the government’s ability to fund religious activities. Second, the Supreme Court has

held that the Free Exercise Clause, which bars the government from making a law “prohibiting the free exercise” of religion,

restricts the government’s ability to exclude religious entities from public programs. Between these two provisions, as the

Supreme Court recognized in Walz v. Tax Commission, there is “room for play in the joints productive of a benevolent

neutrality which will permit religious exercise to exist without sponsorship and without interference.”

Although the Supreme Court’s Establishment Clause jurisprudence has shifted over the years, the Court has frequently

analyzed cases challenging the provision of funds to religious organizations under the three-part Lemon test. This three-part

analysis asks courts to ensure that the government has a secular purpose in offering the funds, that the primary effect of th e

funds neither advances nor inhibits religion, and that the program does not foster excessive government entanglement with

religion. The Supreme Court has upheld direct aid programs that satisfy this test, particularly where there is no risk that

public funds will be used for religious indoctrination. Applying this test, the Court has also upheld indirect aid programs such

as school voucher programs that provide funds to third parties who may independently choose to direct that money to

religious organizations.

But while the Court has recognized that some restrictions on public funds may be necessary to ensure that a program does not

violate the Establishment Clause, in other circumstances, the Supreme Court has held that the government violates the Free

Exercise Clause by excluding religious organizations from generally available programs. While the Court has allowed the

government to prohibit the religious use of funds, the government may not discriminate based on the religious character or

status of an organization.

A number of federal statutes and regulations govern the provision of federal funds to religious organizations. Recently,

however, the executive branch has taken the position that some of these federal laws are no longer consistent with governing

constitutional principles, particularly in light of more recent Supreme Court precedent such as Trinity Lutheran Church of

Columbia, Inc. v. Comer and Espinoza v. Montana Department of Revenue. In Trinity Lutheran, the Court held that excluding

religious organizations from public benefits programs can violate the Free Exercise Clause by impermissibly discriminating

against religion. If Congress agreed with the executive branch, it could amend federal statutes to eliminate any problematic

funding restrictions. The Supreme Court has not specifically ruled on the constitutionality of most of these federal laws,

however, and its Establishment Clause cases suggest that at least some restrictions on the use of federal funds for religious

activities may be constitutionally required. While Congress cannot alter the scope of the Free Exercise Clause’s protections

for religious entities, it can grant additional statutory protections to religious entities, so long as those protections do not rise

to the level of an unconstitutional establishment. Similarly, although Congress cannot amend the scope of the Establishment

Clause’s restrictions on public support for religious activities, it may create statutory restrictions on the religious use of funds,

so long as those restrictions do not violate the Free Exercise Clause.

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Evaluating Federal Financial Assistance Under the Constitution’s Religion Clauses

Contents

Establishment Clause....................................................................................................... 2

General Background .................................................................................................. 2

Assessing Public Funding of Religious Entities .............................................................. 7

Purpose............................................................................................................... 8

Effect ............................................................................................................... 10

Entanglement..................................................................................................... 15

Free Exercise Clause ..................................................................................................... 16

General Background ................................................................................................ 16

Religious Exclusions from Aid .................................................................................. 17

Implications for Congress............................................................................................... 20

Contacts

Author Information ....................................................................................................... 25

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Evaluating Federal Financial Assistance Under the Constitution’s Religion Clauses

he Religion Clauses in the First Amendment of the U.S. Constitution provide that the

government “shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof.”1 The first provision, the Establishment Clause, bars the government

from providing certain types of support for religion. 2 The government would violate the

Establishment Clause by establishing an official national religion, but might also violate this

provision by otherwise supporting or becoming actively involved in religious activities. 3 The Free

Exercise Clause, by contrast, prohibits government hostility to religion, requiring the government

to act in a way that is “neutral toward . . . religious beliefs.”4

Providing government funds or other aid to religious institutions implicates both the Religion

Clauses, as the Supreme Court explained in the foundational 1947 case Everson v. Board of

Education. 5 The Everson opinion considered the constitutionality of a state program that

reimbursed parents for bus fare to send their children to school, including children who attended

parochial schools. 6 Ultimately, the Court held that the program did not violate the Establishment

Clause even though it used “tax-raised funds” to help some children “get to church schools.”7 The

Court noted a tension between the two Religion Clauses as applied to the case. 8 The

Establishment Clause prohibited the state from contributing public funds to support “an

institution which teaches the tenets and faith of any church,” while the Free Exercise Clause

prohibited the state from excluding religious individuals “from receiving the benefits of public

welfare legislation” because of their faith. 9 Balancing these two principles, the Court said that in

“protecting” citizens from “state-established churches,” it did not want to “inadvertently prohibit

[the state] from extending its general state law benefits to all its citizens without regard to their

religious belief.”10 Everson provided a blueprint for much of the Court’s subsequent

jurisprudence on constitutional limitations on public aid.

In its cases interpreting the First Amendment, the Court has required the government to remain

“neutral in its relations with groups of religious believers and non-believers,” and has said that the

government may neither favor nor disfavor religious entities. 11 Thus, the Supreme Court has

recognized that there “is room for play in the joints” between the two Religion Clauses, allowing

the government to display “a benevolent neutrality” that “will permit religious exercise to exist

without sponsorship and without interference.”12 And just as the government may provide some

1 U.S. CONST. amend. I. T he text of the First Amendment actually provides that “ Congress shall make no law,” but the

provision was “made applicable to the states” by the Fourteenth Amendment. Everson v. Bd. of Educ., 330 U.S. 1, 5

(1947). Further, it has long been understood to restrict action by the executive branch as well. See, e.g., Columbia

Broad. Sys., Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 160 (1973) (Douglas, J., concurring) (describing the First

Amendment as restricting Congress, whether “acting directly or through any of its agencies such as the FCC”); see

generally Daniel J. Hemel, Executive Action and the First Amendment’s First Word , 40 P EP P. L. REV. 601 (2013).

2 See Everson, 330 U.S. at 15–16.

3 Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 771 –72 (1973).

4 Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1731 (2018).

5 Everson, 330 U.S. at 16.

Id. at 3.

7 Id. at 16–17.

See id. at 16.

9 Id.

10 Id.

Id. at 18; see also, e.g., Agostini v. Felton, 521 U.S. 203, 231–32 (1997) (citing Everson and upholding a state

program that allocated services “on the basis of criteria that neither favor nor disfavor religion”).

12 Walz v. T ax Comm’n, 397 U.S. 664, 669 (1970).

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Evaluating Federal Financial Assistance Under the Constitution’s Religion Clauses

forms of support for religious entities without violating the Establishment Clause, 13 the Court has

also held that the government may prohibit religious uses of generally available benefits without

violating the Free Exercise Clause. 14 However, the Court has recognized that at times, its opinions

have demonstrated “considerable internal inconsistency,”15 and its interpretations of the First

Amendment have shifted over the past several decades. 16

The ambiguity created by the bare nature of the constitutional text and the Supreme Court’s

varying interpretations of the First Amendment can make it difficult for the government to know

how to treat religious entities or activities when creating public benefits programs. The Supreme

Court, however, has announced a number of guiding principles, and Congress has addressed how

religious entities may participate in federally funded programs in a number of federal statutes and

regulations.

This report explores the Supreme Court’s rulings on the Religion Clauses and public aid, focusing

primarily on the provision of government funds to religious institutions, rather than the provision

of generally available benefits such as goods, services, or facilities. The report begins with

Establishment Clause limitations on the government’s ability to financially support religious

entities, and then turns to Free Exercise limitations on the government’s ability to exclude

religious entities from generally available programs. The report ends by exploring the

implications of these rulings for Congress, discussing existing federal statutes that govern the

provision of federal funds to religious institutions, as well as some recent executive branch

interpretations of those laws.

Establishment Clause

General Background

The First Amendment’s Establishment Clause forbids the government from making any law

“respecting an establishment of religion.”17 Perhaps most obviously, this provision prevents the

federal government from establishing an official national religion akin to the Church of

England. 18 But relying on the historical background preceding the adoption of this amendment,

and looking particularly to the colonists’ experiences with religious establishments, the Supreme

13 See Everson, 330 U.S. at 17.

14 E.g., Locke v. Davey, 540 U.S. 712, 715 (2004) (upholding state scholarship program that excluded students

pursuing degrees in devotional theology).

Walz, 397 U.S. at 668. Cf., e.g., John T . Valauri, The Concept of Neutrality in Establishment Clause Doctrine, 48 U.

P ITT. L. REV. 83, 86 (1986) (“ Everson . . . simultaneously adopted two different and incompatible conceptions of

Establishment Clause neutrality—a separationist conception prohibiting aid to religion and an accommodationist

conception allowing religious participation in secular governmental programs of general social benefit.” ).

See, e.g., Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plurality opinion) (describing a prior inquiry into whether

government aid went to a “pervasively sectarian” activity as “not only unnecessary but also offensive”); Agostini v.

Felton, 521 U.S. 203, 223, 236 (1997) (overruling two prior decisions, describing how more recent cases had

“modified” the Court’s review of whether government aid impermissibly advanced religion).

U.S. CONST. amend. I.

18 See, e.g., Everson, 330 U.S. at 15; see also, e.g., History of the Church of England, T HE CHURCH OF E NGLAND,

https://www.churchofengland.org/more/media-centre/church-england-glance/history-church-england (last visited Sept.

9, 2020) (noting that the Church of England is “the established Church in England”).

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Court has long understood the Establishment Clause to bar other types of government support that

would tend to “establish” religion, as well:

The “establishment of religion” clause of the First Amendment means at least this: Neither

a state nor the Federal Government can set up a church. Neither can pass laws which aid

one religion, aid all religions, or prefer one religion over another. Neither can force nor

influence a person to go to or to remain away from church against his will or force him to

profess a belief or disbelief in any religion. No person can be punished for entertaining or

professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax

in any amount, large or small, can be levied to support any religious activities or

institutions, whatever they may be called, or whatever form they may adopt to teach or

practice religion. Neither a state nor the Federal Government can, openly or secretly,

participate in the affairs of any religious organizations or groups and vice versa.19

In particular, the Supreme Court has observed that “a law may be one ‘respecting’” establishment

even if it does not explicitly establish a religion. 20 The Court has said that for the Founders, laws

respecting “the ‘establishment’ of a religion connoted sponsorship, financial support, and active

involvement of the sovereign in religious activity.”21 Most relevant to this report, the Court has

recognized that the Establishment Clause imposes limits on when the government can provide

financial assistance to religious entities. 22

While the Supreme Court has often referred to government neutrality toward religion as its

guiding principle in applying the Establishment Clause, 23 it has adopted a variety of approaches to

determine whether any given action is sufficiently neutral. 24 At a theoretical level, the Court has

seemed to vacillate between a separationist and an accommodationist view of the Establishment

Clause. 25 The separationist view is embodied by Thomas Jefferson’s statement that the First

Amendment created “a wall of separation between church and State.”26 Thus, in Everson v. Board

of Education in 1947, the Supreme Court said that this wall “must be kept high and

impregnable.”27 The “separation” of church and state is intended not only to protect the

government from religious influence, but also to protect religious exercise by preventing the

government from intervening in religious affairs. 28 In 1971, however, in Lemon v. Kurtzman, the

Supreme Court said that “far from being a ‘wall,’” the line separating church from state “is a

blurred, indistinct, and variable barrier depending on all the circumstances of a particular

19 Everson, 330 U.S. at 15–16.

20 Lemon v. Kurtzman, 403 U.S. 602, 612 (1971) (emphasis added).

Walz v. T ax Comm’n, 397 U.S. 664, 668 (1970).

22 See, e.g., Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 783 (1973) (ruling that the effect of a

state’s tuition reimbursement program was “unmistakably to provide desired financial support for nonpublic, sectarian

institutions”).

See, e.g., McCreary Cty. v. Am. Civil Liberties Union, 545 U.S. 844, 874 (2005); Wallace v. Jaffree, 472 U.S. 38, 60

(1985); Everson, 330 U.S. at 18.

24 See, e.g., Max Guirguis,

A Coat of Many Colors: The Religious Neutrality Doctrine from Everson to Hein, 43

STETSON L. REV. 67, 68 (2013); Valauri, supra note 15, at 94.

See, e.g., Steven G. Gey, Reconciling the Supreme Court’s Four Establishment Clauses, 8 U. P A . J. CONST. L. 725,

725 (2006); Ira C. Lupu, The Lingering Death of Separationism , 62 GEO . W ASH . L. REV. 230, 232 (1994).

26 See Everson, 330 U.S. at 16 (quoting Letter from T homas Jefferson to the Danbury Baptist Ass’n (Jan. 1, 1802),

https://founders.archives.gov/documents/Jefferson/01-36-02-0152-0006 (internal quotation marks omitted)).

Id. at 18. But as discussed above, the Court concluded that the state program reimbursing parents for transportation

costs to religious schools had not “breached” that wall. Id.

28 See, e.g., Engel v. Vitale, 370 U.S. 421, 431 (1962).

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Evaluating Federal Financial Assistance Under the Constitution’s Religion Clauses

relationship.”29 And in a dissenting opinion in 1985, then-Associate Justice Rehnquist argued that

“[t]here is simply no historical foundation for the proposition that the Framers intended to build

the ‘wall of separation’ that was constitutionalized in Everson.”30 Over the years, the Court has

trended toward a more accommodationist approach to the First Amendment, becoming more

accepting of government support for religion. 31

The Court’s predominant approach to evaluating Establishment Clause challenges during much of

the modern era has been an analysis known as the Lemon test, 32 although the Court has not

always followed this approach. 33 Lemon involved challenges to two state programs that provided

public funds to church-affiliated schools. 34 To determine whether these programs violated the

Establishment Clause, the Court considered three different tests drawn from its prior decisions,

stating that to be considered constitutional: (1) a government action “must have a secular

legislative purpose”; (2) “its principal or primary effect must be one that neither advances nor

inhibits religion”; and (3) it “must not foster ‘an excessive government entanglement with

religion.’”35 This statement has become known as the three-part Lemon test, focusing on purpose,

effect, and entanglement. 36 Each prong of Lemon is discussed in more detail below with respect to

programs providing public funds.

While Lemon provides the prevailing analysis for Establishment Clause claims, the Court has also

employed variations on the three-part Lemon test, and has at times refrained entirely from using

this framework. For example, in Lynch v. Donnelly, issued in 1984, the Supreme Court applied

the Lemon test to hold that a city did not violate the Establishment Clause by erecting a Christmas

display that included a nativity scene. 37 Writing a separate concurring opinion, Justice O’Connor

suggested a “clarification” of Lemon. 38 She argued that the Court should ask whether the city had

“endorsed Christianity” by displaying the crèche, saying that the first and second prongs of the

29 Lemon v. Kurtzman, 403 U.S. 602, 614 (1971).

30 Wallace v. Jaffree, 472 U.S. 38, 92, 106 (1985) (Rehnquist, J., dissenting). In 1986, Justice Rehnquist was elevated

from Associate Justice to Chief Justice. Justices 1789 to Present, SUP REME COURT OF THE UNITED STATES

https://www.supremecourt.gov/about/members_text.aspx (last visited Sept. 9, 2019). See also Lynch v. Donnelly, 465

U.S. 668, 673 (1984) (“ Nor does the Constitution require complete separation of church and state; it affirmatively

mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. ”).

See, e.g., Guirguis, supra note 24, at 89–90; Lupu, supra note 25, at 237; Martha McCarthy, Preserving the

Establishment Clause: One Step Forward and Two Steps Back, 2001 BYU EDUC. & L. J. 271, 283–84 (2001).

32 See Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971). See also, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 668

(2002) (O’Connor, J., concurring) (describing Lemon as “[a] central tool” in Establishment Clause analysis); Doe v.

Elmbrook Sch. Dist., 687 F.3d 840, 849 (7th Cir. 2012) (saying that Lemon is the prevailing test for Establishment

Clause claims); Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007, 1017 (9th Cir. 2010) (same); Freiler v.

T angipahoa Parish Bd. of Educ., 185 F.3d 337, 344 (5th Cir. 1999) (same).

See, e.g., Van Orden v. Perry, 545 U.S. 677, 685–86 (2005) (plurality opinion) (“Over the last 25 years, we have

sometimes pointed to Lemon v. Kurtzman as providing the governing test in Establishment Clause challenges. Yet, just

two years after Lemon was decided, we noted that the fact ors identified in Lemon serve as ‘no more than helpful

signposts.’” (quoting Hunt v. McNair, 413 U.S. 734, 741 (1973)) (citations omitted)); Lynch v. Donnelly, 465 U.S.

668, 679 (1984) (noting the Court’s “unwillingness to be confined to any single test or criterion in this sensitive area”).

Cf., e.g., Larson v. Valente, 456 U.S. 228, 246 (1982) (“[W]hen we are presented with a state law granting a

denominational preference, our precedents demand that we treat the law as suspect and that we apply strict scr utiny in

adjudging its constitutionality.” (emphasis added)).

34 See Lemon, 403 U.S. at 606–07.

Id. at 612–13 (quoting Walz v. T ax Comm’n, 397 U.S. 664, 674 (1970)).

36 See, e.g., Agostini v. Felton, 521 U.S. 203, 218 (1997).

37 Lynch v. Donnelly, 465 U.S. 668, 685 (1984).

38 Id. at 687 (O’Connor, J., concurring).

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Lemon test, relating to purpose and effect, focus on endorsement: “The purpose prong of the

Lemon test asks whether government’s actual purpose is to endorse or disapprove of religion. The

effect prong asks whether, irrespective of government’s actual purpose, the practice under review

in fact conveys a message of endorsement or disapproval.”39 In a later concurrence, Justice

O’Connor stated that endorsement should be judged by whether a “reasonable observer” would

think the government is endorsing religion. 40 The Supreme Court as a whole has sometimes used

this endorsement test, 41 which has been described as a relatively more accommodationist position

compared to the original Lemon test. 42

In addition, the test’s three prongs blend together; and specifically, Supreme Court has not always

treated the entanglement prong of the Lemon test as a distinct inquiry. In Agostini v. Felton, a

1997 decision, the Supreme Court said that the inquiry into entanglement should be treated “as an

aspect of the inquiry into a statute’s effect.”43 Accordingly, in that case, the Court asked whether a

school aid program created “an ‘excessive’ entanglement that advances or inhibits religion.”44

Later in the opinion, the Court ruled that the challenged program did not “run afoul of any of

three primary criteria we currently use to evaluate whether government aid has the effect of

advancing religion: it does not result in governmental indoctrination; define its recipients by

reference to religion; or create an excessive entanglement.”45 In 2000’s Mitchell v. Helms, a

plurality of the Court considered a challenged aid program’s purpose and effect, using the three

criteria identified in Agostini to judge its effect. 46

In addition to the Court’s various attempts to clarify or reframe Lemon, a number of Justices have

criticized Lemon’s attempt to articulate “a grand unified theory of the Establishment Clause.”47

Many have argued that the test is difficult to apply in a consistent way, a problem compounded by

the fact that the Court has not always employed the same test. 48 Justice Scalia once described the

Court’s “intermittent use” of Lemon as creating a “strange Establishment Clause geometry of

crooked lines and wavering shapes.”49 In particular, some Justices have argued that the Court

should, in lieu of Lemon, look to “historical practices and understandings” in interpreting the

Id. at 690.

Allegheny Cty. v. ACLU, 492 U.S. 573, 630 (1989) (O’Connor, J., concurring).

41 See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 655 (2002); Allegheny Cty., 492 U.S. at 592 (majority opinion).

42 See, e.g., Steven G. Gey, Religious Coercion and the Establishment Clause, 1994 U. I LL . L. REV. 463, 476 (1994);

Lupu, supra note 25, at 240.

43 Agostini v. Felton, 521 U.S. 203, 233 (1997).

44 Id.

45 Id. at 234 (emphasis added); see also id. at 234–35 (“ We therefore hold that a federally funded program providing

supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the Establishmen t

Clause when such instruction is given on the premises of sectarian schools by government employees pursuant to a

program containing safeguards such as those present here.”).

46 Mitchell v. Helms, 530 U.S. 793, 808 (2000) (plurality opinion). See also Zelman, 536 U.S. at 648–49 (“ The

Establishment Clause of the First Amendment . . . prevents a State from enacting laws that have the ‘purpose’ or

‘effect’ of advancing or inhibiting religion.” (quoting Agostini, 521 U.S. at 222–23)).

47 Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 20 87 (2019) (plurality opinion). See also id. at 2081 (noting

criticism of Lemon by Justices, lower court judges, and “a diverse roster of scholars”).

48 See, e.g., Utah Highway Patrol Ass’n v. Am. Atheists, Inc., 565 U.S. 994, 997–1001 (2011) (T homas, J., dissenting

from denial of certiorari); Cooper v. U.S. Postal Serv., 577 F.3d 479, 494 (2d Cir. 2009); Michael W. McConnell,

Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115, 118–20 (1992).

49 Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 399 (1993) (Scalia, J., concurring in the

judgment).

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Evaluating Federal Financial Assistance Under the Constitution’s Religion Clauses

Establishment Clause, and that any constitutional test must, at minimum, allow governments to

continue to engage in practices with a long history. 50

A focus on historical traditions has displaced Lemon in several discrete Establishment Clause

challenges. In cases involving government-sponsored prayer before legislative sessions, the Court

has upheld prayer practices so long as they fit “within the tradition long followed in Congress and

the state legislatures.”51 In the 2019 case American Legion v. American Humanist Association, the

Supreme Court considered whether to more broadly abandon Lemon and instead adopt a test

focused on historical practice. 52 The Court was evaluating the constitutionality of a state war

memorial that consisted primarily of a large Latin cross. 53 The majority opinion, authored by

Justice Alito, suggested that the Lemon test is not well-suited to evaluating religious “monuments,

symbols, or practices that were first established long ago,” but stopped short of expressly holding

that Lemon is inapplicable in such cases.54 The majority appeared to rely heavily on history and

tradition in upholding the constitutionality of the memorial, stating that in most cases, “[t]he

passage of time gives rise to a strong presumption of constitutionality.”55

However, a different majority of Justices, in various opinions, expressed a belief that the Court

should more broadly abandon the Lemon test. 56 Justice Alito, in a portion of his American Legion

opinion that was only joined by three other Justices, suggested that “longstanding monuments,

symbols, and practices” should not be evaluated under Lemon, 57 but should instead be considered

constitutional so long as they “follow in” a historical “tradition” of religious accommodation. 58

Allegheny Cty. v. ACLU, 492 U.S. 573, 655, 670 (1989) (Kennedy, J., concurring in the judgment an d dissenting in

part). Justice Kennedy also argued that the government must be able to engage in “any other practices” that present “no

greater potential for an establishment of religion” than those historical practices. Id. See also, e.g., Am. Legion v. Am.

Humanist Ass’n, 139 S. Ct. 2067, 2087 (2019) (plurality opinion) (“ While the Lemon Court ambitiously attempted to

find a grand unified theory of the Establishment Clause, in later cases, we have taken a more modest approach that

focuses on the particular issue at hand and looks to history for guidance.”). By contrast, Justice T homas has argued that

governmental action violates the Establishment Clause if it “shares any of the historical characteristics of an

establishment of religion,” which in his view would occur only if the government “attempted to control religious

doctrine or personnel, compel religious observance, single out a particular religious denomination for exclusive state

subsidization, or punish dissenting worship.” Am. Legion, 139 S. Ct. at 2096–98 (Thomas, J., concurring in the

judgment). Justice T homas has also questioned the Court’s conclusion that the Establishment Clause applies to the

states, saying that instead, the Clause “resists incorporation.” Id. at 2095. Justice T homas reiterated this view in 2020,

in a concurring opinion that was joined by Justice Gorsuch. Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2263

(2020) (T homas, J., concurring).

51 T own of Greece v. Galloway, 572 U.S. 565, 577 (2014). See also, e.g., Marsh v. Chambers, 463 U.S. 783, 792

(1983) (“ In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the

practice of opening legislative sessions with prayer has become part of the fabric of our society. ”).

52 Am. Legion, 139 S. Ct. at 2087 (plurality opinion). See also CRS Legal Sidebar LSB10315, No More Lemon Law?

Supreme Court Rethinks Religious Establishment Analysis, by Valerie C. Brannon.

53 Am. Legion, 139 S. Ct. at 2077 (majority opinion).

Id. at 2082.

55 Id. at 2085.

56 Id. at 2081–82 (plurality opinion); id. at 2097 (T homas, J., concurring in the judgment); id. at 2101–02 (Gorsuch, J.,

concurring in the judgment).

57 Id. at 2081–82 (plurality opinion); see also id. at 2081 (“[T]he Lemon test presents particularly daunting problems in

cases, including the one now before us, that involve the use, for ceremonial, celebratory, or commemorative purposes,

of words or symbols with religious associations.”).

58 Id. at 2089 (plurality opinion). While Justice Breyer joined this portion of the plurality opinion and agreed that “the

Court appropriately ‘looks to history for guidance,’” he emphasized in a separate opinion that he did not understand the

majority “to adopt a ‘history and tradition test’ that would permit any newly constructed religious memorial on public

land” to stand regardless of the monument’s “particular historical context.” Id. at 2091 (Breyer, J., concurring)

(citations omitted). Further, both Justice Breyer and Justice Kagan expressed a belief that even if the Court does not

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Justices Thomas, Gorsuch, and Kavanaugh wrote separate concurrences in American Legion

disapproving of Lemon more generally, appearing to reject Lemon’s three-pronged test even in

cases concerning public funding. 59 Justice Alito’s four-Justice plurality opinion appears to be the

controlling opinion for future cases because it is narrower than the concurrences.60 Consequently,

in the future, when courts evaluate longstanding, government-sponsored religious “monuments,

symbols, and practices,” rather than applying Lemon, they may instead ask whether the display or

practice is consistent with historical traditions. 61 But as noted, the Court did not overrule the

Lemon test, and lower courts will likely continue to use this test in future cases until the Supreme

Court says otherwise, particularly in cases involving funding, rather than legislative prayer or

longstanding monuments. 62

Assessing Public Funding of Religious Entities

Various types of public support for religious entities have been challenged as violating the

Establishment Clause, including programs to lend textbooks or other educational materials to

religious schools 63 as well as programs allowing religious teachers to teach religion in public

schools during normal school hours. 64 The Court has said that barring religious entities from

participating on an equal basis in generally available benefits programs could sometimes “lead to

. . . absurd results,” creating a risk that churches could not be protected by the fire department or

benefit from publicly maintained sidewalks. 65 But the Supreme Court has repeatedly suggested

that when the government provides financial aid to religious entities, as opposed to providing

other types of aid, such support presents heightened Establishment Clause concerns. 66 The Court

apply Lemon as such, it should continue to focus on the purpose and effect of government action. Id. at 2091 (noting

that the particular monument before the Court was erected wit h a “secular motive” and conveyed a secular “message of

patriotism and commemoration”); id. at 2094 (Kagan, J., concurring) (“Although I agree that rigid application of the

Lemon test does not solve every Establishment Clause problem, I think that test’s f ocus on purposes and effects is

crucial in evaluating government action in this sphere—as this very suit shows.”).

59 Id. at 2097 (T homas, J., concurring in the judgment); id. at 2101–02 (Gorsuch, J., concurring in the judgment); id. at

2093 (Kavanaugh, J., concurring). However, Justice T homas recognized that government coercion of financial support

for religion might violate the Establishment Clause. Id. at 2096 (T homas, J., concurring in the judgment).

See Marks v. United States, 430 U.S. 188, 193 (1977) (explaining that when “no single rationale explaining the result

[of a case] enjoys the assent of five Justices,” the position representing the narrowest grounds is the Court’s holding).

Am. Legion, 139 S. Ct. at 2089 (plurality opinion). See also, e.g., Freedom From Religion Found., Inc. v. City of

Lehigh, 933 F.3d 275, 279 (3d Cir. 2019) (holding that in light of American Legion, the Lemon test did not guide the

court’s review of a county seal that contained a Latin cross, and ruling that the seal was constitutional because the

record did not displace the “strong presumption” that “longstanding symbols” are constitutional).

62 See, e.g., Freedom From Religion Found., Inc., 933 F.3d at 281 (noting that the Court did not overrule Lemon in

American Legion); Woodring v. Jackson Cty., No. 4:18-cv-00243-TWP-DML, 2019 U.S. Dist. LEXIS 167728, at *6 –7

(S.D. Ind. Sept. 30, 2019) (noting that although American Legion “frowns upon the Lemon test,” it does not offer an

alternative test, and using “the endorsement, coercion, and purpose tests” to evaluate the constitutionality of a nativity

scene on public property); Ctr. for Inquiry, Inc. v. Warren, No. 3:18 -CV-2943-B, 2019 U.S. Dist. LEXIS 138839, at

*19–21 (N.D. T ex. 2019) (noting that the Court’s recent Establishment Clause cases, including American Legion, have

looked to history, but concluding that the historical approach was not dispositive in the case before the court and

instead upholding under Lemon a state law providing that only religious officers may solemn ize marriage ceremonies).

63 See, e.g., Bd. of Educ. v. Allen, 392 U.S. 236, 243 (1968) (upholding program as constitutional).

64 See, e.g., Illinois ex rel. McCollum v. Bd of Educ., 333 U.S. 203, 212 (1948) (ruling that such a program violates the

Establishment Clause).

Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 8 (1993).

66 See, e.g., Mitchell v. Helms, 530 U.S. 793, 818–19 (2000) (plurality opinion); Rosenberger v. Rector & Visitors of

the Univ. of Va., 515 U.S. 819, 842, 844 (1995); Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947).

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has recognized that “financial support” of religion was squarely in the minds of those who

adopted the Establishment Clause. 67

The Supreme Court has generally evaluated such aid under the Lemon framework discussed

above—although its financial aid cases have also reflected the varying approaches to Lemon. As

addressed in more detail below, under Lemon, the Supreme Court has said that financial aid

programs will be unconstitutional if they have an impermissible purpose or effect,68 sometimes

evaluating Lemon’s first two prongs under the endorsement framework.69 The Supreme Court has

struck down programs that violate Lemon’s final prong by creating an excessive entanglement, if

the program requires excessive government monitoring of religious organizations. 70 However, the

Court has held that Lemon does allow the government to provide financial aid to religious entities

under certain circumstances. 71

One central issue in modern Establishment Clause jurisprudence concerns who decides that aid

will be provided to a religious entity. The Supreme Court has said financial aid will be especially

problematic if the government is giving funds directly to religious entities, as opposed to giving

the funds to third parties who then choose to use federal funds to support religious entities. 72

Thus, the Court has distinguished between programs “that provide aid directly to religious”

entities, which are more constitutionally suspect, and so-called “programs of true private choice”

that provide indirect aid. 73 The Court has said that indirect aid will generally be deemed

permissible under Lemon if the “government aid program is neutral with respect to religion, and

provides assistance directly to a broad class of citizens who, in turn, direct government aid to

religious schools wholly as a result of their own genuine and independent private choice.”74

Purpose

The first prong of the Lemon test asks whether the public aid has “a secular legislative

purpose”75 —or under the endorsement test, whether the “government’s actual purpose is to

endorse or disapprove of religion.”76 The government acts with an impermissible purpose if it

seeks to “establish[], sponsor[], or support[] religion.”77 In a number of public aid cases, the

Walz v. T ax Comm’n, 397 U.S. 664, 668 (1970). Cf., e.g., Lee v. Weisman, 505 U.S. 577, 641 (1992) (Scalia, J.,

dissenting) (“I will further acknowledge for the sake of argument that, as some scholars have argued, by 1790 the term

‘establishment’ had acquired an additional meaning—‘financial support of religion generally, by public taxation[.]’”

(quoting LEONARD LEVY, THE ESTABLISHMENT CLAUSE: RELIGION AND THE FIRST AMENDMENT 8–9 (1986))).

68 Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971); see also, e.g., T ex. Monthly, Inc. v. Bullock, 489 U.S. 1, 17

(1989) (plurality opinion) (ruling unconstitutional a tax exemption giving preferential support only to religious

publications); id. at 28 (Blackmun, J., concurring) (same).

69 See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 655 (2002).

70 E.g., Lemon, 403 U.S. at 615.

E.g., Bowen v. Kendrick, 487 U.S. 589, 602 (1988). Cf. Roemer v. Bd. of Pub. Works, 426 U.S. 736, 747 (1976)

(plurality opinion) (“The Court has taken the view that a secular purpose and a facial neutrality may not be enough, if

in fact the State is lending direct support to a religious activity.”).

72 See, e.g., Locke v. Davey, 540 U.S. 712, 719 (2004).

See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 649 (2002); Lemon v. Kurtzman, 403 U.S. 602, 621 (1971). Cf.

Mitchell v. Helms, 530 U.S. 793, 818 (2000) (plurality opinion) (“Whether one chooses to label this program ‘direct’ or

‘indirect’ is a rather arbitrary choice, one that does not further the constitutional analysis.”).

74 Zelman, 536 U.S. at 652.

Lemon, 403 U.S. at 612.

76 Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring).

77 Walz v. T ax Comm’n, 397 U.S. 664, 674 (1970). Walz was decided prior to Lemon, but the Court’s inquiry

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Supreme Court has suggested that if a program broadly provides benefits to a large group of

recipients rather than singling out religious recipients, this may show that the government is not

acting with an impermissible purpose of supporting religion. 78

Thus, for example, the Supreme Court has upheld programs where state governments were

motivated by “secular” purposes such as “providing educational assistance to poor children,”79

defraying parents’ educational costs, 80 or “assuring the continued financial health of private

schools, both sectarian and nonsectarian.”81 To take another example, in Bowen v. Kendrick, the

Supreme Court held that the federal government could give funds to religious organizations as

part of a broader program. 82 The program offered grants to nonprofit organizations to provide

services “for the provision of care to pregnant adolescents and adolescent parents, . . . [and] for

the prevention of adolescent sexual relations.”83 The Court concluded that reducing “social and

economic problems caused by teenage sexuality, pregnancy, and parenthood” was “a legitimate

secular purpose.”84

There are not many cases in which the Supreme Court has concluded that a program failed the

purpose prong of the Lemon test, particularly in the specific context of financial aid programs. 85

The Court has occasionally found an impermissible purpose in the context of programs involving

other types of public aid. 86 For example, the Supreme Court ruled in two different cases that state

laws restricting the teaching of evolutionary biology had the impermissible purpose of advancing

certain religious views regarding the creation of humans. 87 In one of these cases, the Court

rejected the state’s asserted secular purpose of ensuring “academic freedom,” noting that public

schools were already free to teach any scientific theory, so that the law provided them “with no

new authority,” and emphasizing that the law offered special resources and protection to “creation

scientists” and “creationism.”88 Thus, this case shows that the Court may, in special

nonetheless focused on purpose, effect, and excessive government entanglement with religion. See id.

78 See, e.g., id. at 672–74; Zelman, 536 U.S. at 652.

Zelman, 536 U.S. at 649.

Mueller v. Allen, 463 U.S. 388, 395 (1983).

Id. See also, e.g., Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 84 0 (1995) (“ The

governmental program here is neutral toward religion. T here is no suggestion that the University created it to advance

religion or adopted some ingenious device with the purpose of aiding a religious cause. T he object of the [program] is

to open a forum for speech and to support various student enterprises, including the publication of newspapers, in

recognition of the diversity and creativity of student life.”).

82 Bowen v. Kendrick, 487 U.S. 589, 602 (1988).

83 Id. at 594.

84 Id. at 602. T he Court said that this secular motive was not undermined by the fact that Congress had specifically

amended the statute to make clear that religious organizations were eligible to receive funds, concluding that this

language was not sufficient to demonstrate an impermissible purpose of endorsing religion. Id. at 604–05.

See T ex. Monthly, Inc. v. Bullock, 489 U.S. 1, 17 (1989) (plurality opinion) (concluding that a state tax exemption

for religious periodicals lacked “a secular objective that would justify this preference”) .

86 See, e.g., Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203, 226 (1948) (concluding that the “ candid purpose”

of a program allowing religious teachers paid by churches to teach religion classes in public schools during normal

class hours “is sectarian teaching”).

Edwards v. Aguillard, 482 U.S. 578, 591 (1987) (holding that “[t] he preeminent purpose of the Louisiana Legislature

was clearly to advance the religious viewpoint that a supernatural being created humankind”); Epperson v. Arkansas,

393 U.S. 97, 107–08 (1968) (noting that prior version of the challenged law expressly stated its purpose as making it

unlawful to teach any theory that contradicts biblical teachings and ruling that under the circumstances, “t here can be

no doubt that Arkansas has sought to prevent its teachers from discussing the theory of evolution because it is contrary

to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man ”).

88 Aguillard, 482 U.S. at 587–88.

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circumstances, look beyond a law’s stated secular purpose to determine that in fact, it

impermissibly seeks to advance religion.

Effect

The second prong of the Lemon inquiry asks whether, even if the government did not act with the

purpose of aiding religion, the aid nonetheless has the “principal or primary effect” of

“advanc[ing]” or “inhibit[ing] religion.”89 Viewed through the lens of endorsement, the effects

prong asks whether “the practice under review in fact conveys a message of endorsement or

disapproval” of religion. 90

Similar to the inquiry under the purpose prong, the Supreme Court has suggested that one

relevant factor in evaluating a program’s effect is whether the aid is provided to a “broad class” of

recipients or whether it instead appears to be more targeted toward religious beneficiaries. 91 In the

context of cases involving indirect aid or nonfinancial aid, the Court has sometimes used

language suggesting that “neutrality,” in the sense of making public aid available to both religious

and nonreligious recipients, may be sufficient to ensure that a program does not violate Lemon’s

effects prong.92 By contrast, in Texas Monthly, Inc. v. Bullock, the Supreme Court struck down a

state tax exemption for periodicals distributed “by a religious faith” that consisted “wholly” of

religious “writings.”93 Justice Brennan, writing for a plurality of the Court, concluded that this

exemption failed the endorsement test. 94 He said that “when government directs a subsidy

exclusively to religious organizations that is not required by the Free Exercise Clause,” that

conveys an impermissible message of “state sponsorship of religious belief.”95 Justice Blackmun,

joined by Justice O’Connor, agreed that the tax exemption violated the Establishment Clause

because the state had “engaged in preferential support for the communication of religious

messages.”96

In direct aid programs, the Court has said that aid will have an impermissible effect if there is no

“effective means of guaranteeing that the state aid derived from public funds will be used

exclusively for secular, neutral, and nonideological purposes.”97 In Committee for Public

Education and Religious Liberty v. Nyquist and Levitt v. Committee for Public Education, the

Supreme Court held that two state programs funding private schools violated the Establishment

Clause because the program lacked any measures to ensure that the funds would not be used for

Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).

Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring).

91 Zelman v. Simmons-Harris, 536 U.S. 639, 652, 661 (2002).

92 See, e.g., Mitchell v. Helms, 530 U.S. 793, 810 (2000) (plurality opinion) (“[I] f the government, seeking to further

some legitimate secular purpose, offers aid on the same terms, without regard t o religion, to all who adequately further

that purpose, then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secul ar

purpose.” (citation omitted)); id. at 837 (O’Connor, J., concurring) (disagreeing with “the plurality’s treatment of

neutrality,” which “ comes close to assigning that factor singular importance in the future adjudication of Establishment

Clause challenges to government school-aid programs”). See generally, e.g., Espinoza v. Mont. Dep’t of Revenue, 140

S. Ct. 2246, 2254 (2020) (“We have repeatedly held that the Establishment Clause is not offended when religious

observers and organizations benefit from neutral government programs.”).

T ex. Monthly, Inc. v. Bullock, 489 U.S. 1, 5 (1989) (plurality opinion).

94 Id. at 17.

95 Id. at 15 (emphasis added).

Id. at 28 (Blackmun, J., concurring). Justice Blackmun believed that this “statutory preference for the dissemination

of religious ideas” could not be considered a “constitutionally permissible” accommodation of religion. Id.

97 Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 780 (1973).

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religious purposes. 98 In Nyquist, the Court was considering a state law that, among other things,

offered grants to private schools for facilities maintenance and repair. 99 The law did not “restrict

payments . . . to the upkeep of facilities used exclusively for secular purposes,” and would have,

for example, allowed schools to use the funds for “the salaries of employees who maintain the

school chapel, or the cost of renovating classrooms in which religion is taught.”100 Accordingly,

the Court concluded that the program failed the effect prong of Lemon because it would

“inevitably . . . subsidize and advance the religious mission of sectarian schools.”101 Similarly, in

Levitt, the Supreme Court held that a state program reimbursing religious schools for performing

certain testing and recordkeeping services violated the Establishment Clause because “the aid that

[would] be devoted to secular functions [was] not identifiable and separable from aid to sectarian

activities.”102 The Court noted that the tests were prepared by “teachers under the authority of

religious institutions” and ruled that there was an inherent risk of the test being used for “religious

indoctrination.”103

Concurrently, the Supreme Court has upheld some programs that provide funds directly to

religious entities when the programs restrict the religious use of those funds. Seven years after its

decision in Levitt, the Court upheld a revised version of the testing-reimbursement law that it had

struck down in that decision. 104 The new law did not allow reimbursement for teacher-prepared

tests and allowed states to audit payments. 105 The Court ruled that these new safeguards were

sufficient to ensure “that the cash reimbursements would cover only secular services.”106 In Hunt

v. McNair, a decision issued the same day as Nyquist and Levitt, the Court rejected an

Establishment Clause challenge to a state revenue bond issued to a religious college as part of a

program that offered financial assistance to colleges for facilities construction and

maintenance. 107 The state program specified that funds could not be used for “any facility used

. . . for sectarian instruction or as a place of religious worship nor any facility which is used . . .

primarily in connection with any part of the program of a school or department of divinity for any

religious denomination”108 —in short, excluding any “facilities used for religious purposes.”109

The Court concluded that absent any evidence that public funds were actually going to religious

uses, this provision was sufficient to ensure that the program did “not have the primary effect of

advancing or inhibiting religion.”110

98 Id. at 779–80; Levitt v. Comm. for Pub. Educ. & Religious Liberty, 413 U.S. 472, 480 (1973).

99 Nyquist, 413 U.S. at 774.

100 Id.

101 Id. at 779–80. Cf., e.g., Am. Atheists, Inc. v. City of Detroit Downtown Dev. Auth., 567 F.3d 278, 298 (6th Cir.

2009) (“‘[A]ll or practically all’ of the schools eligible for the grants [in Nyquist] were not merely religious; they also

were from the same denomination, which itself suggested a forbidden purpose.” (quoting Nyquist, 413 U.S. at 768)).

102 Levitt, 413 U.S. at 480.

103 Id.

104

Comm. for Pub. Educ. & Religious Liberty v. Regan, 444 U.S. 646, 657, 659 (1980).

105 Id. at 652.

106 Id. at 659.

107

108

Hunt v. McNair, 413 U.S. 734, 736 (1973).

Id. at 736–37 (quoting S.C. Code Ann. § 22-41.2(b) (Supp. 1971)) (internal quotation marks omitted).

109 Id. at 744.

110 Id. at 744–45. See also Roemer v. Bd. of Pub. Works, 426 U.S. 736, 740 –41 (1976) (plurality opinion) (upholding

state program that gave unrestricted grants to private colleges but stated that the funds could not be used for “sectarian

purposes”); T ilton v. Richardson, 403 U.S. 672, 675 (1971) (plurality opinion) (upholding federal grant program for the

construction of academic facilities that excluded “any facility used or to be used for sectarian instruction or as a place

for religious worship, or . . . any facility which . . . is used or to be used primarily in connection with any part of the

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But while restrictions on the religious use of funds might sometimes be sufficient to ensure a

program does not have an impermissible effect under Lemon, subsequent Supreme Court

precedent may suggest that contrary to some of the language in Nyquist and Levitt, such an

express prohibition might not always be necessary for a program to be ruled constitutional. 111 The

Supreme Court has since said that courts should not always assume that religiously affiliated

organizations would use public funds for religious purposes. 112 For instance, in Bowen v.

Kendrick, the Court upheld a federal grant program that did not contain any provision expressly

prohibiting the use of federal funds for religious purposes. 113 The Court noted that the statute

made funds available to a wide variety of organizations and stated that there was no evidence that

a “significant proportion of the federal funds” would be given to religious institutions. 114 Further,

the Court said that it would assume that even absent an express restriction on the religious use of

funds, religious grantees could carry out the funded programs “in a lawful, secular manner.”115

Somewhat similarly, in Agostini v. Felton, the Supreme Court said that in assessing the effect of

other types of public aid, courts should not assume that public school teachers providing

ostensibly secular services at religious schools will inevitably “inculcate religion in the students”

or otherwise engage in “state-sponsored indoctrination.”116

In indirect aid programs, the Supreme Court has not required the government to include religious

use restrictions. 117 Instead, where financial aid is provided to religious entities indirectly, the

Court has generally held that such programs satisfy Lemon’s effects prong even if the funds do

ultimately support religious activities—so long as the program is “neutral in all respects toward

religion,”118 particularly in the sense of using religiously neutral criteria to distribute aid. 119 In

Zelman v. Simmons-Harris, for example, the Supreme Court rejected an Establishment Clause

challenge to a municipal program that offered “tuition aid” to parents with financial needs who

sought to enroll their children in private schools. 120 The parents could choose to use those tuitionaid checks at religious or nonreligious schools. 121 The Court said that where the government

program of a school or department of divinity” (omissions in original)).

111 See Mitchell v. Helms, 530 U.S. 793, 856 (2000) (O’Connor, J., concurring) (“ Wolman and Levitt were both based

on the same presumption that government aid will be used in the inculcatio n of religion that we have chosen not to

apply to textbook lending programs and that we have more generally rejected in recent decisions.”); see also Bowen v.

Kendrick, 487 U.S. 589, 634–35 (1988) (Blackmun, J., dissenting) (arguing that the majority opinion “marks a sharp

departure from” the Court’s precedents, including Levitt).

112

Bowen v. Kendrick, 487 U.S. 589, 612 (1988).

113 Id. at 614.

114 Id. at 608, 610.

115 Id. at 612, 614.

116 Agostini v. Felton, 521 U.S. 203, 223–24 (1997).

117

See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 649 (2002). In fact, the Court has sometimes suggested that if

the government prohibits private entities from “us[ing] their own money” to support religion, this would raise concerns

under the Constitution’s Free Exercise Clause. Quick Bear v. Leupp, 210 U.S. 50, 81–82 (1908) (rejecting

constitutional challenge to government contract providing money from the “Sioux T reaty Fund” to a religious school

on the Rosebud Indian Reservation).

118

119

See Zelman, 536 U.S at 653.

See, e.g., Mitchell v. Helms, 530 U.S. 793, 838–39 (2000) (O’Connor, J., concurring in the judgment).

120 Zelman, 536 U.S. at 646.

121 Id. at 653. In its analysis, the Court noted that there was “no evidence” that parents did not have “genuine

opportunities . . . to select secular educational options for their school-age children.” Id. at 655. Although “46 of the 56

private schools” participating in the program were religious, secular options were available and there was no evidence

that the city was “coercing parents into sending their children to private schools.” Id. at 655–56. Cf., e.g., Ams. United

for Separation of Church & State v. Prison Fellowship Ministries, Inc., 509 F.3d 406, 425 (8th Cir. 2007) (“In this case,

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program aided “a broad class of citizens” who then chose to “direct government aid to religious

schools wholly as a result of their own genuine and independent private choice,” any support for

religion was “reasonably attributable to the individual recipient, not to the government, whose

role ends with the disbursement of benefits.”122 Consequently, under the endorsement test, “no

reasonable observer would think” that such a program “carries with it the imprimatur of

government endorsement” of religion. 123

The Court’s indirect aid cases have frequently involved educational programs. In addition to

programs that provide tuition assistance to parents or students at religious schools, 124 the Supreme

Court has also approved of programs that offer financial assistance to parents for other costs

related to attending private schools. For example, in Everson v. Board of Education, the Court

ruled that a state did not violate the Establishment Clause when it reimbursed parents for the cost

of bus fares to send their children to private schools. 125 In Mueller v. Allen, the Supreme Court

concluded that a state could allow taxpayers to claim a tax deduction for tuition, textbooks, and

transportation costs incurred in sending their students to a religious school. 126 Among other

factors, the court stressed that the tax deduction was “available for educational expenses incurred

by all parents, including those whose children attend public schools and those whose children

attend non-sectarian private schools or sectarian private schools.”127 Because the benefit was

broadly available and neutral on its face with respect to religion, the Court believed that the

program had a primarily secular effect and did not imply state endorsement of religion. 128

To take one last example, the Supreme Court ruled that it did not violate the Establishment Clause

for a public university to pay for the printing of a religious student publication in Rosenberger v.

Rector and Visitors of the University of Virginia. 129 The funds came from a Student Activities

Fund, which was generally available to support the extracurricular activities of approved student

groups. 130 The student groups chose how to use the funds, and in the case before the court, the

funds were given to the printer, rather than being paid directly to the religious student group. 131

Under the circumstances, the Court said it was not “plausible” that any religious speech supported

with these funds would be attributed to the university, rather than the student group that chose

how to use the funds. 132 Because the funds were available on a “religion-neutral basis” as part of

there was no genuine and independent private choice. T he inmate could direct the aid only to InnerChange [a religious

program offering services to prison inmates]. T he legislative appropriation could not be directed to a secular program,

or to general prison programs.”); T een Ranch v. Udow, 389 F. Supp. 2d 827, 836 (W.D. Mich. 2005) (ruling that an

“opt-out” provision was not enough to create true private choice where the state selected who would provide services) .

122 Zelman, 536 U.S. at 653.

123 Id. at 655. T he majority opinion relied on the endorsement test. In a concurring opinion, Justice O’Connor explained

that the majority opinion “focuse[d] on a narrow question related to the Lemon test: how to apply the primary effects

prong in indirect aid cases?” Zelman, 536 U.S. at 669 (O’Connor, J., concurring).

124 Locke v. Davey, 540 U.S. 712, 719 (2004) (stating that a state could provide scholarships to students pursuing

degrees “in devotional theology” without violating the Establishment Clause); Zelman, 536 U.S. at 662; Witters v.

Wash. Dep’t of Servs. for the Blind, 474 U.S. 481, 489 (1986) (ruling that a state could provide tuition aid to a visually

impaired student studying religious subjects at a religious college without violating the Establishment Clause).

125 Everson v. Bd. of Educ., 330 U.S. 1, 17 (1947).

126 Mueller v. Allen, 463 U.S. 388, 402–03 (1983).

127

Id. at 397.

128 Id.

129

Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 84 2 (1995).

130 Id. at 823–24.

131 Id. at 842.

132 Id. at 841.

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a program that funded “secular services” such as printing, the Court held that the school was not

barred from providing these funds to the religious publication. 133

At least one case suggests that there may be a limiting principle on the government’s ability to

provide financial assistance in indirect aid programs. In Committee for Public Education and

Religious Liberty v. Nyquist, decided in 1973, the Supreme Court struck down a program that

assisted only private schools. 134 In that case, a state offered direct grants to private schools for

maintenance and repair costs—discussed above135 —and also provided indirect aid in the form of

tuition reimbursements and tax benefits to parents whose children attended private schools. 136

Unlike aid programs that the Court has upheld, the funds in Nyquist could be used only at private

schools, rather than benefitting both public and private schools. 137 With respect to the tuition

reimbursements, the Court concluded that regardless of the fact that the funds were given to

parents and not directly to schools, the program was still unconstitutional because “the effect of

the aid is unmistakably to provide desired financial support for nonpublic, sectarian

institutions.”138 The Court ruled that the tax benefits were similarly unconstitutional, saying that

“in practical terms,” there was little difference between the tuition grant and the tax benefits. 139

In Zelman, the Supreme Court clarified that “Nyquist does not govern neutral educational

assistance programs that, like the program here, offer aid directly to a broad class of individual

recipients defined without regard to religion.”140 Accordingly, the Supreme Court has not

expressly overruled Nyquist, but its ruling striking down the tuition reimbursement grants and tax

credits may apply only in limited circumstances. 141 In particular, it may be open to debate whether

an indirect aid program that was neutral toward religion on its face and supported both religious

and secular private entities, but did not also aid public entities would raise Establishment Clause

concerns.142 A few judges after Zelman have concluded that indirect assistance programs are

133 Id. at 843–44. T he Court cautioned, however, that “if the State pays a church’ s bills it is subsidizing it, and we must

guard against this abuse.” Id. at 844. But the Court said the case before it did not present this circumstance, in part

because “ the student publication is not a religious institution . . . and it is not a religious organization.” Id.

134 Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 798 (1973). T he Court held that a similar

tuition reimbursement program violated the Establishment Clause in Sloan v. Lemon, concluding that Nyquist mandated

this outcome. 413 U.S. 825, 830 (1973).

135 See supra notes 99 to 101 and accompanying text.

Nyquist, 413 U.S. at 762–67. T he Court noted that “all or practically all” of the schools eligible for the direct grants

were Catholic, but that religious schools from other denominations and secular private schools were eligible for aid

under the other provisions. Id. at 768 & n.23.

136

137 See Zelman v. Simmons-Harris, 536 U.S. 639, 661 (2002); Mueller v. Allen, 463 U.S. 388, 398–99 (1983).

Nyquist, 413 U.S. at 783. T he Court’s Zelman opinion could be read to suggest that the program in Nyquist was also

motivated by an impermissible purpose: “ Although the program was enacted for ostensibly secular purposes, we found

that its ‘function’ was ‘unmistakably to provide desired financial support for nonpublic, sectarian institutions.’”

Zelman, 536 U.S. at 661 (quoting Nyquist, 413 U.S. at 783) (internal citations omitted). See also, e.g., Mitchell v.

Helms, 530 U.S. 793, 819 n.8 (2000) (plurality opinion) (stating that Nyquist “involved serious concerns about whether

the payments were truly neutral”).

138

139 Nyquist, 413 U.S. at 790–91. T he Court distinguished Walz v. Tax Commission, 397 U.S. 664, 666–67 (1970),

discussed infra notes 153 to 155 and accompanying text, by noting, as one relevant factor, that the tax exemption in

Walz “covered all property devoted to religious, educational, or charitable purposes,” while the tax benefits in Nyquist

“flow[ed] primarily to the parents of children attending sectarian, nonpublic schools.” Nyquist, 413 U.S. at 794.

140 Zelman, 536 U.S. at 662.

141

Cf., e.g., Religious Restrictions on Capital Financing for Historically Black Colleges and Universities, slip op. at 14

(Op. O.L.C. Aug. 15, 2019), https://www.justice.gov/olc/file/1200986/download (expressing “doubt about whether

Tilton and Nyquist remained good law”).

142 See, e.g., Green v. Garriot, 212 P.3d 96, 117 (Ariz. Ct. App. 2009) (Kessler, J., dissenting) (“[I]t is the lack of any

tax benefit to parents sending their children to public schools which further distinguishes this case from Zelman and

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invalid even if the program is facially neutral with respect to religion, if the program assists only

private schools and primarily assists religious schools. 143 However, the Supreme Court’s

statement in Zelman suggests that a program assisting only private entities might nonetheless be

constitutional so long as the program is otherwise neutral toward religion, 144 and some lower

courts have upheld indirect aid programs that funnel funds to both secular and religious private

organizations. 145 Further, in a more recent case primarily involving a Free Exercise challenge, the

Supreme Court said that an Establishment Clause challenge to a state tax benefit program

indirectly assisting only private schools would be “unavailing,”146 further suggesting that Nyquist

likely no longer provides support for a challenge based on the fact that a state program aids only

private schools.

Entanglement

Apart from Lemon’s purpose and effect prongs, direct financial aid to religious entities may also

be unconstitutional if it violates the excessive entanglement prong. In Lemon itself, the Supreme

Court struck down two state programs that provided money to religious schools for teachers’

salaries after concluding that the programs “foster[ed] an impermissible degree of

entanglement.”147 The Court expressed particular concern about the fact that one of the programs

provided money directly to schools, saying that historically, programs involving “a continuing

cash subsidy . . . have almost always been accompanied by varying measures of [government]

control and surveillance,” creating an unconstitutional “intimate and continuing relationship

between church and state.”148 With respect to both programs, the Court also expressed concern

about the “divisive political potential” and the relatively unprecedented nature of the programs,

stating that these factors might suggest a danger of even greater government regulation of

religious schools in the future. 149 Generally, the Court has expressed concern about pervasive

government monitoring of religious entities. 150

The Supreme Court has also acknowledged that it is necessary for the state to monitor the use of

public funds to ensure they are being used appropriately, and the Court has approved of some

systems that do not require the government to “intrude unduly in the day-to-day operation” of

religious entities. 151 The Court has suggested that the types of “administrative burdens” associated

makes it more comparable to Nyquist.”).

143 See, e.g., Winn v. Ariz. Christian Sch. T uition Org., 562 F.3d 1002, 1005 (9th Cir. 2009), rev’d on other grounds

sub nom., 563 U.S. 125 (2011); Espinoza v. Mont. Dep’t of Revenue, 435 P.3d 603, 620 (Mont. 2018) (Gustafson, J.,

concurring), rev’d, 140 S. Ct. 2246 (2020); cf., e.g., Am. Atheists, Inc. v. City of Detroit Downtown Dev. Auth., 567

F.3d 278, 298 (6th Cir. 2009) (ruling that Nyquist did not require invalidation of a program in which “[o]nly 6% of the

aid distributed by the city went to reimbursement grants for religious organizations”).

144 Zelman, 536 U.S. at 662.

145 See, e.g., Freedom from Religion Found., Inc. v. McCallum, 324 F.3d 880, 882–83 (7th Cir. 2003) (rejecting

Establishment Clause challenge to program in which the state contracted with various halfway houses, including one

religious organization, but the probationer or parolee chose which halfway house program to join).

146 Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2254 (2020).

147 Lemon v. Kurtzman, 403 U.S. 602, 615 (1971).

148 Id. at 621–22.

149 Id. at 622–24.

150

Agostini v. Felton, 521 U.S. 203, 234 (1997).

151 Bowen v. Kendrick, 487 U.S. 589, 616 (1988). See also Comm. for Pub. Educ. & Religious Liberty v. Regan, 444

U.S. 646, 660 (1980) (“We agree with the District Court that ‘[t]he services for which the private schools would be

reimbursed are discrete and clearly identifiable.’ T he reimbursement process, furthermore, is straightforward and

susceptible to the routinization that characterizes most reimbursement schemes.” (alteration in original) (quoting

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with “generally applicable administrative and recordkeeping regulations” do not violate the

Establishment Clause. 152 For example, in Walz v. Tax Commission, the Supreme Court concluded

that New York could exempt churches from property taxes under a state provision that exempted

property used “exclusively for religious, educational or charitable purposes.”153 The Court

acknowledged that the exemption would create some degree of government entanglement with

religion by giving churches “an indirect economic benefit,” but stated that the exemption entailed

less government involvement than either taxing the churches or giving them a direct money

subsidy. 154 Ultimately, the Court ruled that the exemption created “only a minimal and remote

involvement between church and state.”155

Free Exercise Clause

General Background

The Free Exercise Clause of the First Amendment provides that the government “shall make no

law . . . prohibiting the free exercise” of religion. 156 The Supreme Court has said that generally,

the government may not “target[] religious beliefs as such”157 or otherwise “base laws or

regulations on hostility to a religion or religious viewpoint.”158 Further, if a law “infringe[s] upon

or restrict[s] practices because of their religious motivation,” it will be subject to strict scrutiny

and “invalid unless it is justified by a compelling interest and is narrowly tailored to advance that

interest.”159 For example, in Church of Lukumi Babalu Aye v. City of Hialeah, the Supreme Court

held that a local ordinance prohibiting certain types of animal sacrifice violated the Free Exercise

Clause because the purpose of the law was to suppress certain religious practices. 160 However, if

the burden on free exercise is “merely the incidental effect of a generally applicable and

otherwise valid provision,” the Supreme Court has said that such a law will not violate the First

Amendment. 161

As discussed in more detail below, aid programs that expressly exempt religious entities are not

facially neutral toward religion, and consequently, are susceptible to the charge that they

unconstitutionally “single out the religious for disfavored treatment.”162 Even though a denial of a

benefit is arguably less burdensome to religious exercise than, for example, completely

prohibiting a religious activity, the Court has recognized that “indirect coercion or penalties on

the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First

Comm. for Pub. Educ. & Religious Liberty v. Levitt, 461 F. Supp. 1123, 1131 (S.D.N.Y. 1978))).

152 Jimmy Swaggart

153

Ministries v. Bd. of Equalization, 493 U.S. 378, 394 –95 (1990).

Walz v. T ax Comm’n, 397 U.S. 664, 666–67 (1970).

154 Id. at 674–75.

Id. at 676 (“T he exemption creates only a minimal and remote invo lvement between church and state and far less

than taxation of churches. It restricts the fiscal relationship between church and state, and tends to complement and

reinforce the desired separation insulating each from the other.”).

155

156 U.S. CONST. amend. I.

157

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993).

158 Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1731 (2018).

159

Church of Lukumi Babalu Aye, 508 U.S. at 533.

160 Id. at 534.

161 Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 878 (1990).

162 See T rinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2020 (2017).

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Amendment.”163 But the Supreme Court has recognized that certain religious exclusions are

permissible if they are justified by historically supported “antiestablishment” interests:

constitutionally grounded concerns about not supporting religion. 164

Religious Exclusions from Aid

There are three primary Supreme Court cases in which plaintiffs have challenged religion-based

exclusions from generally available grant programs under the Free Exercise Clause 165 : Locke v.

Davey, a 2004 case in which the Supreme Court upheld the exclusion;166 and Trinity Lutheran

Church of Columbia, Inc. v. Comer167 in 2017 and Espinoza v. Montana Department of

Revenue168 in 2020, cases in which the Supreme Court held that the exclusions were

unconstitutional.

First, in Locke v. Davey, the Court considered a Free Exercise challenge to a state scholarship

program for postsecondary educational expenses. 169 While students could use the scholarship at

religious schools, they could not use the scholarship to pursue a “degree in devotional

theology.”170 This exclusion was based on a state constitutional provision that prohibited the state

from appropriating public money for religious instruction. 171 A student who was denied the

scholarship because he was seeking a “pastoral ministries” degree argued that the program was

“presumptively unconstitutional because it [was] not facially neutral with respect to religion.”172

The Supreme Court disagreed, 173 concluding that nothing “in the history or text” of the state

constitution or “the operation of” the scholarship program “suggest[ed] animus toward

religion.”174 As opposed to the evidence of discrimination against religion in Church of Lukumi

Babalu Aye, the Locke Court viewed the program’s “disfavor of religion (if it can be called that)”

to be of a “far milder kind.”175 Among other factors, the Court noted that the program did not

impose any sanctions on religious exercise and did not “require students to choose between their

religious beliefs and receiving a government benefit.”176 To the contrary, the majority opinion

163 Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 450 (1988). Cf., e.g., McDaniel v. Paty, 435 U.S.

618, 629 (1978) (holding that a state law prohibiting ministers and priests from participating in a state constitutional

convention violated the Free Exercise Clause).

164

See Locke v. Davey, 540 U.S. 712, 720–22 (2004); cf., e.g., Rosenberger v. Rector & Visitors of the Univ. of Va.,

515 U.S. 819, 837, 842 (1995) (considering but ultimately rejecting claim that Establishment Clause justified free

speech violation by requiring the defendant school to prohibit religious uses of its facilities).

165 Cf., e.g., Sherbert v. Verner, 374 U.S. 398, 409 (1963) (ruling that disqualifying a Seventh -day Adventist from

unemployment benefits because she would not work on Saturday unconstitutionally burdened the applicant’s free

exercise of religion).

166 540 U.S. at 724.

167 137 S. Ct. at 2024.

168 Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2255 (2020).

169 540 U.S. at 715.

170

Id. at 716–17.

171 See id. at 715; W ASH . CONST. art. I, § 11 (“No public money or property shall be appropriated for or applied to any

religious worship, exercise or instruction, or the support of any religious establishment . . . .”).

172 Locke, 540 U.S. at 717, 720.

173

Id. at 720 (“ We reject his claim of presumptive unconstitutionality . . . .”).

174 Id. at 724.

175 Id. at 720.

176 Id. at 720–21.

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stated that the program went “a long way toward including religion in its benefits,” given that

students could use the scholarship at religious schools and for religious courses. 177

The Locke Court stated that the devotional-theology exclusion was not required by the

Establishment Clause. 178 The scholarship program was an indirect aid program: the state provided

the funds to students, who could then choose how to use the funds.179 Accordingly, it would not

violate the Establishment Clause if the state did allow scholarship students to pursue devotional

theology degrees. 180 But ultimately, in the Court’s view, the state could permissibly choose not to

fund religious training, “an essentially religious endeavor.”181 The state’s decision to treat

“religious education for the ministry” differently than “education for other callings” was “a

product of” the state’s historically grounded opposition to government establishment of religion,

“not evidence of hostility toward religion.”182 Accordingly, the Court concluded that the

“relatively minor burden” on scholarship students was acceptable in light of the state’s

“substantial” “interest in not funding the pursuit of devotional degrees.”183

By contrast, in Trinity Lutheran Church of Columbia v. Comer, the Supreme Court held that a

state grant program that excluded religious organizations from a general grant program violated

the Free Exercise Clause. 184 The state program in Trinity Lutheran offered grants to nonprofit

organizations for upgrading playground surfaces, but excluded organizations “owned or

controlled by a . . . religious entity.”185 This policy was, like the Locke exclusion, based on a state

constitutional provision prohibiting public funds from being used “directly or indirectly, in aid of

any church, sect or denomination of religion.”186 Unlike the program in Locke, which “did not

‘require students to choose between their religious beliefs and receiving a government benefit,’”

the Supreme Court said that the playground grant program unconstitutionally put religious

organizations “to the choice between being a church and receiving a government benefit.”187

According to the Court, the student in Locke, unlike the religious school applying for a

playground grant, “was not denied a scholarship because of who he was; he was denied a

scholarship because of what he proposed to do—use the funds to prepare for the ministry.”188

Consequently, because the program required an organization “to renounce its religious character

in order to participate in an otherwise generally available public benefit program,” the Supreme

Court said that the state imposed “a penalty on the free exercise of religion that must be subjected

177 Id. at 724–25.

178 Id. at 719.

179 Id.

180 Id.

181 Id. at 721.

182 Id.; see also id. at 722–23 (discussing historical opposition to “using tax funds to support the ministry”).

183

Id. at 725.

184 T rinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2024 (2017).

185 Id. at 2017.

186

187

Id. (quoting MO . CONST. art. I, § 7).

Id. at 2024 (quoting Locke, 540 U.S. at 720–21).

188 Id. at 2023. Concurring in the Court’s judgment in Trinity Lutheran, Justice Gorsuch questioned the Court’s

apparent attempt to draw a distinction “ between laws that discriminate on the basis of religious status and religious

use.” Id. at 2025 (Gorsuch, J., concurring). Among other objections, he noted that the First Amendment “ guarantees the

free exercise of religion, not just the right to inward belief (or status).” Id. at 2026. Justice Gorsuch also questioned “t he

stability of such a line,” suggesting that it could be difficult to determine the distinction between religious status and

religious activity. Id. at 2025.

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to the ‘most rigorous’ scrutiny.”189 It could only be justified by “a state interest ‘of the highest

order.’”190 In these circumstances, the Court held that the state’s “policy preference for skating as

far as possible from religious establishment concerns” did not “qualify as compelling.”191

In a footnote that only three other Justices joined, Chief Justice Roberts, who wrote the majority

opinion, described the decision as involving “express discrimination based on religious identity

with respect to playground resurfacing”—raising the question of whether the opinion extended to

“religious uses of funding or other forms of discrimination.”192 In the wake of Trinity Lutheran,

legal commentators questioned whether Chief Justice Roberts’s footnote limiting the decision to

discrimination “with respect to playground resurfacing” was an attempt to suggest that the ruling

applied only to programs with “no direct religious content” that provided only secular benefits. 193

The Supreme Court, however, clarified Trinity Lutheran’s scope in Espinoza v. Montana

Department of Revenue, holding that the nondiscrimination principle also applies to indirect aid

programs that fund religious activities. 194 Espinoza involved a state program offering tax credits

for donating to private organizations that granted scholarships to private schools, including

religious schools. 195 The Montana Supreme Court had invalidated the tax credit program, holding

that it violated a state constitutional provision known as the No-Aid Clause that prohibited the

government from providing direct or indirect financial support to religious schools. 196 The state

argued that Trinity Lutheran should not apply because the No-Aid Clause excluded religious

schools based on how they would use the funds—for religious education. 197 The Supreme Court

disagreed, pointing to the text of the No-Aid Clause, which singled out “sectarian” schools, and

observing that the state supreme court had applied the clause “solely by reference to religious

status.”198 Distinguishing Locke, the Court emphasized that Montana had not merely excluded

any “particular ‘essentially religious’ course of instruction,” but barred all aid to religious

schools. 199 Further, unlike the “‘historical and substantial’ state interest in not funding the training

of clergy” at issue in Locke, the Court stated that there was no similar historically grounded

interest in wholly disqualifying religious schools from public aid. 200

189 Id. at 2024 (majority opinion) (quoting Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546

(1993)).

190 Id. (quoting McDaniel v. Paty, 435 U.S. 618, 628 (1978)).

191

Id.

192

Id. at 2024 n.3 (plurality opinion).

193 Frank Ravitch, T rinity Lutheran and Zelman – Saved By Footnote 3 or a Dream Come True for Voucher

Advocates?, SCOT USBlog (June 26, 2017), https://www.scotusblog.com/2017/06/symposium-trinity-lutheran-churchv-comer-zelman-v-simmons-harris-saved-footnote-3-dream-come-true-voucher-advocates.

194 Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2252 (2020).

195

Id. at 2251.

196 Id. at 2253. T he challengers described this provision as a “Blaine Amendment” and argued that the constitutional

provision was motivated by anti-Catholic animus—an issue that the majority opinion did not address. See id. at 704–05

(Alito, J., concurring). See also, e.g., Locke v. Davey, 540 U.S. 712, 723 n.7 (2004) (noting arguments that the state

constitution “was born of religious bigotry” but stating that because the specific constitutional provision challenged in

that case was not a Blaine Amendment, the Court would not consider this history of possible animus).

197

Espinoza, 140 S. Ct. at 2255.

198 Id. at 2255–56. T he majority opinion in Espinoza acknowledged Justice Gorsuch’s Trinity Lutheran dissent

questioning “ whether there is a meaningful distinction between discrimination based on use or conduct and that based

on status.” Id. at 2257. However, the Court concluded it did not need to examine this issue because the Montana

program did discriminate based on religious status. Id.

199 Id. at 2257.

200 Id. at 2257–58.

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Because the No-Aid Clause “discriminate[d] based on religious status,”201 the Supreme Court

applied strict scrutiny to analyze its application to religious schools and parents. 202 Following

Trinity Lutheran, the Court said that the state’s interest in separating church and state beyond

what was required by the federal Establishment Clause was insufficiently compelling. 203 The

Court also rejected Montana’s arguments that the No-Aid Clause promoted religious freedom by

protecting taxpayers’ religious liberty and “keeping the government out of” the operations of

religious organizations. 204 The Court did “not see how” denying religious organizations the option

to participate in the government program promoted religious liberty. 205 And in response to

Montana’s claim that the No-Aid Clause advanced the state’s interest in supporting public

education, the Court ruled that the provision was “fatally underinclusive,” as it excluded only

religious private schools and still allowed public support to be diverted to nonreligious private

schools. 206

Implications for Congress

As discussed, the inclusion of religious organizations in federal aid programs can raise

constitutional questions under both the Establishment and Free Exercise Clauses of the First

Amendment. The Supreme Court’s jurisprudence interpreting these two provisions limits both

Congress’s ability to include religious organizations in federal aid programs and to exclude them

from such programs. While providing funds to religious organizations implicates the

Establishment Clause, 207 the Court has upheld direct aid programs that prevent government funds

from being used for religious indoctrination. 208 The Court has also upheld indirect aid programs

that provide funds to third parties who may independently choose to direct that money to

religious organizations. 209 By contrast, excluding religious organizations from otherwise generally

available government benefits implicates the Free Exercise Clause, and categorical exclusions

from direct or indirect aid programs based on religious status are likely unconstitutional. 210 More

limited restrictions on religious uses of funding might not violate the Free Exercise Clause. 211

There are a variety of federal statutes and regulations that govern the provision of funds to

religious organizations that participate in specific federal programs. In addition to Supreme Court

precedent interpreting the First Amendment, federal agencies and others subject to these federal

laws will have to follow any applicable statutes or regulations governing the use of federal funds.

201 Id. at 2257.

202 Id. at 2260. T he Court did not hold that this state constitutional provision was facially unconstitutional, but

concluded that the No-Aid Clause could not be applied in a way that excluded religious schools based solely on their

religious status. Id. at 2256, 2260. However, some of the language in the opinion referred to the No -Aid Clause as a

whole. See, e.g., id. at 2257 (“ Montana’s no-aid provision discriminates based on religious status.”).

203 Id. at 2260.

204 Id.

205

Id. at 2261.

206 Id.

207

E.g., Lemon v. Kurtzman, 403 U.S. 602, 613–14 (1971).

208 Mitchell v. Helms, 530 U.S. 793, 840 (2000) (O’Connor, J., concurring in the judgment); see also, e.g., Bowen v.

Kendrick, 487 U.S. 589, 602 (1988).

209 E.g., Zelman v. Simmons-Harris, 536 U.S. 639, 649 (2002).

210 T rinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2020 (2017).

211 E.g., Locke v. Davey, 540 U.S. 712, 721 (2004).

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Generally, federal laws such as the so-called “Charitable Choice”212 statutes appear to track the

constitutional principles outlined above, allowing religious organizations to receive federal funds

on the same basis as non-religious organizations, but placing some limitations on the use of those

funds to ensure they do not support certain religious activities. 213

However, Congress may nonetheless review federal laws in light of Supreme Court precedent

trending toward greater inclusion of religious organizations in public funding and requiring

religious exclusions to be more narrowly tailored to historically justified interests around specific

religious activities. 214 In particular, the Trump Administration has taken the position that some

funding restrictions found in federal statutes and regulations are no longer constitutional in light

of the Supreme Court’s decision in Trinity Lutheran. 215 The Administration has changed some

executive branch policies 216 and issued legal opinions expressing its views in favor of greater

inclusion of religious organizations. 217

For example, in January 2020, nine agencies proposed amendments to their regulations governing

the provision of federal funds to religious organizations. 218 Among other changes, these agencies

removed regulations requiring faith-based organizations to refer potential beneficiaries who

212 See, e.g., President George W. Bush, Charitable Choice: The Facts, T HE W HITE HOUSE (last visited Sept. 9, 2020),

https://georgewbush-whitehouse.archives.gov/government/fbci/guidance/charitable.html (“T he Charitable Choice laws

[enacted between 1996 and 2000] apply to four Federal programs: T emporary Assistance to Needy Families . . . and the

Community Services Block Grant . . . programs . . . ; programs for substance abuse and mental health . . . ; and the

Welfare-to-Work program . . . .”); see also, e.g., Pub. L. No. 104-193, § 104, 110 Stat. 2105, 2161 (1996) (codified at

42 U.S.C. § 604a).

213 Cf., e.g., Michele Estrin Gilman, “Charitable Choice” and the Accountability Challenge: Reconciling the Need for

Regulation with the First Amendment Religion Clauses, 55 VAND . L. REV. 799, 807–08 (2002) (“The charitable choice

provision [42 U.S.C. § 604a] contains several requirements designed to ease First Amendment church -state separation

concerns while simultaneously preserving the religious character of the grantees.”).

214 See, e.g., Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2257–58 (2020).

215 See T rinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 (2017).

216 See, e.g., News Release, FEMA Expands Public Assistance Eligibility to Include Houses of Worship , FEMA (Jan. 2,

2018), https://www.fema.gov/news-release/2018/01/02/fema-expands-public-assistance-eligibility-include-housesworship (announcing policy change making “ houses of worship” eligible for disaster assistance).

217 See, e.g., Religious Restrictions on Capital Financing for Historically Black Colleges and Universities, slip op. at 28

(Op. O.L.C. Aug. 15, 2019), https://www.justice.gov/olc/file/1200986/download (arguing that two statutes governing

the provision of federal funds to historically black colleges and universities would be unconstitutional insofar as they

could be read to exclude schools based on their religious character); Memorandum from Attorney General Sessions to

All Executive Departments and Agencies, Federal Law Protections for Religious Liberty (Oct. 6, 2017),

https://www.justice.gov/opa/press-release/file/1001891/download (generally explaining views on constitutional issues).

218 Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 85 Fed. Reg.

3190 (proposed Jan. 17, 2020) (to be codified at 2 C.F.R. pt. 3474 & 34 C.F.R. pts. 75–76, 106, 606–09); Equal

Participation of Faith-Based Organizations in DHS’s Programs and Activities, 85 Fed. Reg. 2889 (proposed Jan. 17,

2020) (to be codified at 6 C.F.R. pt. 19); Equal Opportunity for Religious Organizations in U.S. Department of

Agriculture Programs, 85 Fed. Reg. 2897 (proposed Jan. 17, 2020) (to be codified at 7 C.F.R. pt. 16); Equal

Participation of Faith-Based Organizations in USAID’s Programs and Activities, 85 Fed. Reg. 2916 (proposed Jan. 17,

2020) (to be codified at 22 C.F.R. pt. 205); Equal Participation of Faith-Based Organizations in HUD Programs and

Activities, 85 Fed. Reg. 8215 (proposed Feb. 13, 2020) (to be codified at 24 C.F.R. pts. 5, 92, 578); Equal Participation

of Faith-Based Organizations in Department of Justice’s Programs and Activities, 85 Fed. Reg. 2921 (proposed Jan. 17,

2020) (to be codified at 28 C.F.R. pt. 38); Equal Participation of Faith -Based Organizations in the Department of

Labor’s Programs and Activities, 85 Fed. Reg. 2929 (proposed Jan. 17, 2020) (to be codified at 29 C.F.R. pt. 2); Equal

Participation of Faith-Based Organizations in Veterans Affairs Programs, 85 Fed. Reg. 2938 (proposed Jan. 17, 2020)

(to be codified at 38 C.F.R. pts. 50, 61–62); Ensuring Equal T reatment of Faith-Based Organizations, 85 Fed. Reg.

2974 (proposed Jan. 17, 2020) (to be codified at 45 C.F.R. pts. 87, 1050). T hese proposed amendments reflected

principles set out in Executive Order No. 13,831, 83 Fed. Reg. 20,715 (May 3, 2018), which amended prior executive

orders setting out the principles that should guide agencies providing federal funds to faith -based organizations.

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objected to receiving religious services to alternative service providers. 219 The agencies argued

that imposing additional referral burdens on faith-based service providers, but not secular

providers, unconstitutionally discriminated against faith-based organizations. 220 In another

example, the Small Business Administration (SBA) announced in April 2020 that faith-based

organizations, including houses of worship, would be eligible to receive loans under the

Coronavirus Aid, Relief, and Economic Security Act. 221 Although preexisting SBA regulations

excluded certain religious entities from its loan programs, the SBA concluded that those

regulations “impermissibly . . . . bar[red] the participation of a class of potential recipients based

solely on their religious status,” saying that the SBA would no longer enforce those regulations.222

While the executive branch’s views on the First Amendment are not binding on Congress or the

courts, congressional awareness of the Administration’s positions aids understanding of how

legislative schemes are being implemented and keeps Congress apprised of prevailing

interpretations of the Free Exercise Clause. Congress also has an interest in ensuring that federal

funds are not supporting religious activities in ways that would violate the Establishment

Clause. 223

Generally, as discussed in more detail above, financial aid programs in the form of tax

exemptions and indirect grant programs are unlikely to violate the Establishment Clause unless

the aid is preferentially given only to religious organizations or activities, or other evidence

demonstrates an impermissible purpose to support religion. 224 Thus, for example, federal law

creates a tax exemption for religious, charitable, educational, and other nonprofit organizations in

26 U.S.C. § 501(c)(3).225 On its face, this exemption appears similar to the state tax exemption

upheld by the Court in Walz226 —although some plaintiffs have (unsuccessfully) attempted to

argue that certain applications of this tax exemption violate the Establishment Clause by favoring

219

220

See, e.g., Uniform Administrative Requirements, Cost Principles, and Audit Requirements, 85 Fed. Reg. at 3193.

See, e.g., Ensuring Equal T reatment of Faith-Based Organizations, 85 Fed. Reg. at 2976.

221 SMALL BUS. ADMIN ., FREQUENTLY ASKED QUESTIONS REGARDING PARTICIPATION OF FAITH-BASED ORGANIZATIONS

IN THE P AYCHECK P ROTECTION P ROGRAM (PPP) AND THE E CONOMIC I NJURY DISASTER L OAN P ROGRAM (EIDL) (2020),

https://www.sba.gov/sites/default/files/2020-06/SBA%20Faith-Based%20FAQ%20Final-508.pdf.

222 Id. at 1; see also CRS Legal Sidebar LSB10445, Eligibility of Religious Organizations for the CARES Act’s

Paycheck Protection Program , by Valerie C. Brannon.

223 See generally, e.g., CRS Report R45442, Congress’s Authority to Influence and Control Executive Branch Agencies,

by T odd Garvey and Daniel J. Sheffner.

224 Compare Zelman v. Simmons-Harris, 536 U.S. 639, 653 (2002) (rejecting Establishment Clause challenge to

indirect aid program, noting that the program was open to religious and nonreligious schools, including public schools),

and Walz v. T ax Comm’n, 397 U.S. 664, 672–73 (1970) (rejecting Establishment Clause challenge to state tax

exemption for religious, educational and charitable organizations, noting t hat the exemption did “not single[] out one

particular church or religious group or even churches as such ”), with T ex. Monthly, Inc. v. Bullock, 489 U.S. 1, 17

(1989) (plurality opinion) (ruling state tax exemption for only religious periodicals unconstitutional), and Comm. for

Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 794 (1973) (ruling indirect assistance unconstitutional where

the benefits “flow[ed] primarily to the parents of children attending sectarian, nonpublic schools”).

225

26 U.S.C. § 501(c)(3).

226 Walz, 397 U.S. at 672–73. See also Fields v. United States, No. 96-317, 1998 U.S. Dist. LEXIS 5558, at *5 (D.D.C.

Mar. 25, 1998) (rejecting argument that determining the tax exempt status of religious organizations violates the

Establishment Clause, noting that “courts have repeatedly sanctioned the use of § 501(c)(3)”).

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Evaluating Federal Financial Assistance Under the Constitution’s Religion Clauses

certain religious beliefs 227 or creating an excessive entanglement with religion. 228 The Internal

Revenue Service (IRS) does treat houses of worship more favorably than other § 501(c)(3)

organizations in at least one respect. 229 Nonprofit organizations generally must notify the IRS that

they are applying for tax-exempt status.230 Churches, however, are not subject to this notification

requirement and are instead automatically considered tax exempt by the IRS. 231 Although some

plaintiffs have attempted to challenge this seemingly preferential treatment as violating the

Establishment Clause, courts have so far dismissed those claims on procedural grounds.232

Turning to indirect aid such as voucher programs, the Supreme Court has said that programs of

“genuine and independent private choice” are “not readily subject to challenge under the

Establishment Clause.”233 Consistent with this distinction, federal regulations governing the

participation of religious organizations in federal programs treat direct and indirect aid programs

differently. 234 For example, while regulations promulgated by the Department of Health and

Human Services (HHS) provide that organizations receiving “direct financial assistance . . . may

not support or engage in any explicitly religious activities . . . as part of the programs or services

funded with direct financial assistance,” this restriction does not apply to the “use of indirect

Federal financial assistance.”235

However, the Trump Administration nonetheless concluded that at least some of these indirect-aid

provisions were insufficiently accommodating of religious organizations. For instance, in January

2020, HHS proposed to amend its regulatory definition of “indirect” assistance. 236 The regulation

defined assistance as indirect only if, among other factors, “[t]he beneficiary has at least one

adequate secular option for the use of the voucher, certificate, or other similar means of

Government-funded payment.”237 HHS argued that this requirement for secular options was not

required by Zelman, which in the view of the agency, “noted the availability of secular providers”

in approving the challenged voucher program, but “specifically declined to make its definition of

indirect aid hinge on the ‘preponderance of religiously affiliated private’ providers.”238 This

227 See, e.g., Bob Jones Univ. v. United States, 461 U.S. 574, 604 n.30 (1983) (rejecting argument that denying tax

exemption to religious university that discriminated on the basis of race privileged religious beliefs allowing “racial

intermixing” over the university’s belief that such “intermixing is forbidden,” ruling instead that the IRS

nondiscrimination policy had a neutral, secular basis).

228

See, e.g., Church of Scientology v. Comm’r, 83 T .C. 381, 462 (1984), aff’d, 823 F.2d 1310 (9th Cir. 1987).

229 Cf., e.g., Am. Atheists, Inc. v. Shulman, 21 F. Supp. 3d 856 , 859–61 (E.D. Ky. 2014) (identifying a number of

provisions in the federal tax code that allegedly discriminate in favor of churches).

230 26 U.S.C. § 508(a).

231 26 U.S.C. § 508(c)(1)(A); IRS, T AX GUIDE FOR CHURCHES AND RELIGIOUS ORGANIZATIONS 2 (2015),

https://www.irs.gov/pub/irs-pdf/p1828.pdf. However, the governing statute contemplates that some nonreligious

organizations may also be exempt from the notification requirement. 26 U.S.C. § 508(c)(1)(B), (2) (exempting certain

small organizations and authorizing the Secretary to exempt other organizations).

232 See Freedom from Religion Found. v. Koskinen, 72 F. Supp. 3d 963 , 964 (W.D. Wis. 2014) (dismissing claim for

lack of standing); Am. Atheists, Inc, 21 F. Supp. 3d at 872 (ruling that although plaintiffs sufficiently alleged an

Establishment Clause challenge, they lacked standing).

233 Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002).

234 See, e.g., 45 C.F.R. § 87.3.

235 Id. § 87.3(b). HHS has proposed to delete the language prohibiting organizations receiving direct assistance from

“support[ing]” explicitly religious activities. Ensuring Equal T reatment of Faith-Based Organizations, 85 Fed. Reg.

2974, 2985 (proposed Jan. 17, 2020) (to be codified at 45 C.F.R. § 87.3(b)).

236

Ensuring Equal T reatment of Faith-Based Organizations, 85 Fed. Reg. at 2985 (to be codified at 45 C.F.R.

§ 87.1(c)).

237 45 C.F.R. § 87.1(c).

238 Ensuring Equal T reatment of Faith-Based Organizations, 85 Fed. Reg. at 1977 (quoting Zelman, 536 U.S. at 656–

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Evaluating Federal Financial Assistance Under the Constitution’s Religion Clauses

reading of Zelman seems to implicate the open question discussed above about the continuing

validity of the Nyquist decision, which ruled an indirect aid program subsidizing only private

schools—and primarily aiding religious schools—unconstitutional. 239 The Zelman Court

distinguished Nyquist in part by noting that the program in Nyquist supported only private

schools, suggesting that programs with an impermissible purpose or effect of supporting religious

schools would remain unconstitutional. 240 Accordingly, a federal indirect assistance program that

only allows beneficiaries to choose religious organizations might still be subject to an

Establishment Clause challenge as an unconstitutional preference for religion. 241

Federal programs that provide money directly to religious organizations may present more

significant constitutional problems under the Establishment Clause. 242 With respect to direct aid

programs, restrictions that prevent public funds from being used for religious activities may help

ensure that the program satisfies Establishment Clause scrutiny. 243 A number of program-specific

federal statutes state that federal funds may not be used for religious worship or instruction. 244

Somewhat similar to the state law at issue in Locke v. Davey, 245 a number of federal statutes seek

to ensure that federal funds will not benefit schools of divinity at higher education institutions. 246

Other statutes prohibit the use of funds to construct or maintain buildings in which religious

instruction or worship occurs.247 These construction and maintenance prohibitions seem to echo

Supreme Court decisions like Hunt v. McNair and others that rejected Establishment Clause

challenges to government programs that contained similar restrictions prohibiting public funds

from being used for religious facilities. 248

More recent Supreme Court precedent suggests that such restrictions might be unnecessary even

in direct aid programs, 249 at least so long as there is no specific evidence showing that funds will

be used for religious activities and there is some mechanism for the government to ensure funds

are not used to advance religion. 250 And as discussed, language in more recent cases could be read

to suggest that if a program is open to both religious and nonreligious groups, it will be

considered neutral and will not be considered to have an impermissible effect. 251 As with tax

exemptions and indirect aid programs, however, preferential aid only provided for religious

57).

239 See Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 798 (1973).

240 Zelman, 536 U.S. at 661 (“ Nyquist involved a New York program that gave a package of benefits exclusively to

private schools and the parents of private school enrollees. . . . [T ]he program flatly prohibited the participation of any

public school, or parent of any public school enrollee.”).

241 Cf. id. at 662 (noting that the program challenged in Zelman allowed beneficiaries “ to exercise genuine choice

among options public and private, secular and religious”).

242 See, e.g., Mitchell v. Helms, 530 U.S. 793, 818–19 (2000) (plurality opinion); id. at 840 (O’Connor, J., concurring).

243

Hunt v. McNair, 413 U.S. 734, 736 (1973).

244 See, e.g., 20 U.S.C. § 1011k(c); 34 U.S.C. § 12161(b)(B)(iv); 42 U.S.C. § 290kk -2; 42 U.S.C. § 9920(c).

245 Locke v. Davey, 540 U.S. 712, 715 (2004).

246 See, e.g., 20 U.S.C. § 1062(c); id. § 1103e(1). Cf., e.g., 25 U.S.C. § 278a (“Funds appropriated . . . to the Secretary

of the Interior for the education of Indian children shall not be used for the education of such children in elementary

and secondary education programs in sectarian schools.”).

247

See, e.g., 20 U.S.C. § 1087-53(b)(1)(C); 20 U.S.C. § 10004(c)(3); 25 U.S.C. § 1813(e); 29 U.S.C. § 3248.

248 Hunt v. McNair, 413 U.S. 734, 736 (1973); see also supra note 110.

249 Bowen v. Kendrick, 487 U.S. 589, 614 (1988); Agostini v. Felton, 521 U.S. 203, 224 (1997).

250 Bowen, 487 U.S. at 615.

251 See Mitchell v. Helms, 530 U.S. 793, 810, 818 (2000) (plurality opinion).

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organizations or activities would likely violate the purpose or effect prongs of Lemon. 252 Further,

government monitoring of direct aid programs may violate Lemon’s entanglement prong if a

program requires the government to become involved in a religious organization’s “day-to-day

operation[s]”253 or inquire into the organization’s religious doctrine. 254

In summary, Congress may consider reviewing existing law to ensure that it is consistent with

recent Supreme Court cases ruling that funding restrictions discriminating against religious

entities may violate the Free Exercise Clause. 255 Further, while Congress cannot alter the scope of

the Free Exercise Clause’s protections for religious entities, it can grant additional statutory

protections to religious entities, so long as those protections do not rise to the level of an

unconstitutional establishment. 256 Similarly, on the opposite side, although Congress cannot

amend the scope of the Establishment Clause’s restrictions on public support for religious

activities, it may create statutory restrictions on the religious use of funds, so long as those

restrictions do not violate the Free Exercise Clause.

Author Information

Valerie C. Brannon

Legislative Attorney

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252 E.g., T ex. Monthly, Inc. v. Bullock, 489 U.S. 1, 17 (1989) (plurality opinion); id. at 28 (Blackmun, J., concurring).

253 Bowen, 487 U.S. at 616.

254

See Hernandez v. Commissioner, 490 U.S. 680, 696 –97 (1989).

255 See, e.g., Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2260 (2020); Masterpiece Cakeshop, Ltd. v. Colo.

Civil Rights Comm’n, 138 S. Ct. 1719, 1731 (2018).

256 See, e.g., 42 U.S.C. § 2000bb-1 (Religious Freedom Restoration Act).

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