Religious Freedom and Government Funding

The First Amendment of the U.S. Constitution has two major clauses regarding religion.The first, and the most invoked in daily American life, is the “Free Exercise Clause,” which protects citizens’ right to practice the religion of their choice. In their interpretation of the Constitution, experts with the U.S. Court System say this clause protects citizens’ religious choices as long as the religious practice does not run afoul of a “public morals” or a “compelling” governmental interest.

An instance of the U.S. Supreme Court offering a look at the institution’s understanding of a “compelling governmental interest” and “public morals” was observed in the Prince v Massachusetts case of 1944, in which the Supreme Court held that a state could mandate the vaccination of children whose parents would not allow such action for religious reasons. The Court held that the state had an overriding interest in protecting public health and safety.

The second provision, known as the “Establishment Clause,” barred the government from establishing a religion. Historically, that was meant to prohibit state-sponsored churches. At that time, lawmakers were concerned with the Church of England, an example of a state-sponsored religious institution.

In 1971, the Supreme Court further established what constitutes the “establishment of a religion.” The Lemon v Kurtzman case provides some insight. Under the "Lemon" test, the government can assist religion only if: A) the primary purpose of the assistance is secular, B) the assistance must neither promote nor inhibit religion, and C) there is no excessive entanglement between church and state.

The “Establishment Clause” has been a subject of contention in recent years. The Supreme Court has heard cases about whether faith-based organizations should receive funding from the government to deliver community and social services typically reserved for governments at different jurisdictional levels to administer.

Southwestern University Professor Emeritus Timothy J. O’Neil, whose field of study is focused on the relationship between religious institutions and the federal government, wrote in an article from 2023 for the Middle Tennessee State University Free Speech Center where he noted that government funding to religious organizations has been rekindled as a controversial topic.

Some of that controversy dates back to the early 2000s, when then-President George W. Bush created the Faith Based and Community Initiatives plan, a string of executive orders that require equal treatment for religious organizations seeking federal funds. Under these orders, organizations can use religious beliefs to guide the hiring of workers and in their operations. They cannot, however, discriminate against their clientele based on these beliefs. Worshiping in subsidized social programs is also prohibited.

By 2004, O’Neil wrote, more than 10% of all federal grants were going to faith-based organizations. This share of the pie being fed to religious organizations has drawn criticism from skeptics who feel faith-based government initiatives pose several constitutional and political questions, particularly around the “Establishment Clause.”

In the article, O’Neil wrote that critics of the funding for faith-based organizations argue that it is an instance of the government delegating functions to religious institutions who cannot separate their secular and religious activities. Additionally, they noted, the religious freedoms of the recipients of the services provided by these organizations are in jeopardy due to the religious elements of said organizations. Despite the questions of constitutionality, the Supreme Court has not struck down a government-funded, faith-based social program, according to a Congressional Research Report.

“The U.S. Supreme Court has drawn a constitutional distinction between aid that flows directly to religious organizations and aid that benefits such organizations indirectly as the result of voucher or tax benefit programs,” according to the report.

This makes the permissibility of government aid to religious organizations dependent on the purpose of the aid and the way in which it is distributed. For example, the Supreme Court has ruled that if the aid is being used by a religious organization for non-religious purposes it does not violate that clause. This is known as direct government funding. The Supreme Court typically applies the three-part “Lemon” test mentioned earlier to make a determination of constitutionality.

Indirect funding to religious organizations typically entails programs that allow recipients to choose from a list of service providers, including faith-based organizations. These types of cases with indirect funding to organizations have seen less scrutiny from the court.

“The Supreme Court still requires such aid programs to serve a secular purpose; but it does not apply the secular use and entanglement tests applicable to direct aid,” according to the Congressional Research Report.

Another main avenue of criticism and constitutional questions about religious freedom is how the U.S. Supreme Court ruling in Dobbs v Jackson Women’s Health Organization from 2022 overturned the precedent set by Roe v Wade. The latter became synonymous in America with allowing women to have a choice in their reproductive health. Columbia Law School Professor Martin E. Gold wrote in 2022 in an article published in the American Constitutional Society website that the Dobbs decision violated religious freedoms because four of the justices who authored the decision are conservative Christians.

“All these judges placed their personal, conservative Christian beliefs above those of others,” Gold wrote. “Each of them believes a ‘human person’ comes into existence immediately upon conception and that abortion at any stage can be made a crime.”

In Gold’s opinion, this decision allowed states to write new abortion laws that will ignore the position on abortion held by other religious people.

One of Gold’s arguments is that members of other religions, like Judaism, don’t share the same beliefs as those held by the lawmakers who created laws outlawing abortion. Rabbi Hara Person, who serves as the Chief Executive of Central Conference of American Rabbis, said that total abortion bans may not only prevent access to necessary medical care in cases of unhealthy pregnancies, but also violate religious freedoms.

“The notion that the Supreme Court might dictate when life begins according to only one religious tradition is deeply problematic and concerning to us,” Person said.