Should church lose funding for saying grace before meals?
The Trump administration has ruled that religious organizations receiving federal grants may incorporate prayer and worship into taxpayer-funded services without previous restrictions.
The Department of Justice’s Office of Legal Counsel, responding to a request from the Department of Health and Human Services under Secretary Robert F. Kennedy Jr., concluded that the Constitution does not require religious groups to segregate spiritual activities from federally funded charitable work, according to Joshua Craddock and T. Elliot Gaiser writing in Washington Examiner.
For years, federal law compelled religious charities to offer what regulators deemed “explicitly religious activities” such as prayer or Scripture reading separately in time or location from services funded by government grants. Secular organisations faced no such limitations on promoting their nonreligious worldviews whilst receiving federal dollars.
The newly published Office of Legal Counsel opinion declares this differential treatment unconstitutional, marking a decisive break from mid-20th century jurisprudence that erected what was termed a strict “wall of separation” between government and faith-based charity.
Historical Partnership Between Faith and Civil Government
The collaboration between religious institutions and civil government in serving the needy predates the Constitution itself. Benjamin Franklin founded the Junto Club in 1727 at age 20, which spawned the nation’s first lending library, first volunteer fire department, and first charity hospital on donated land under Quaker care, funded through legislation matching private donations with public grants.
The First Congress, the same body that proposed the First Amendment, declared in the Northwest Ordinance that religion, morality, and knowledge were necessary to good government and mandated that schools and education be forever encouraged.
The Lemon Test and Its Lingering Effects
Despite this historical tradition, Supreme Court decisions in the mid-20th century began interpreting the First Amendment’s establishment and free exercise clauses as demanding rigid separation. This approach culminated in the 1971 case Lemon v. Kurtzman, which established a multifactor test to avoid what it called excessive government entanglement with religion.
The late Justice Antonin Scalia famously compared Lemon to a ghoul in a late-night horror movie that repeatedly rises from the grave despite being killed and buried.
Subsequent administrations and Congresses attempted to navigate this legal landscape by distinguishing between religious status and religious use: whilst governments could not exclude organisations merely for being religious, they could and often did prohibit spending federal funds on religious activities.
This framework forced government officials into the inappropriate position of determining what constitutes a religious act, a task that varies across faiths and risks favouring some religions over others. A religious organisation could teach a federally funded course on healthy marriage and responsible fatherhood, for instance, but could not incorporate its religious perspective without triggering onerous differentiation and cost-allocation requirements.
Faith-Based Organisations Dominate Charitable Landscape
More than half of all food pantries and soup kitchens in the United States are operated by faith-based organisations, as are roughly one-quarter of transitional housing programmes and emergency shelters. Yet many people of faith have been deterred from participating in federally funded programmes due to the regulatory burdens imposed exclusively on religious providers.
Supreme Court Overturns Lemon Framework
In 2022, the Supreme Court definitively rejected the Lemon test in Kennedy v. Bremerton School District, calling it an ahistorical approach to the Establishment Clause that the court had long ago abandoned. The court now relies on historical practices and understandings from when the First Amendment was ratified.
In the companion case Carson v. Makin, also decided in 2022, the court clarified that the free exercise clause prohibits governments from denying benefits to religious organisations on account of anticipated religious use.
New Originalist Interpretation
Under this originalist framework, the Office of Legal Counsel advised HHS that the establishment clause does not require religious restrictions on charitable programmes. The government may engage religious institutions to deliver civil services without demanding they strip away the faith elements that often make such organisations effective in the first place.
The opinion represents a significant victory for religious liberty and restores the constitutional partnership between faith-based providers and government that characterized American civil society from its founding through the mid-20th century.
With information from Washington Examiner
