Attempts to sideline religion from American public life are not new, but whereas conservatives typically think that this type of discrimination is endemic to blue states, the reality is much more complex. In fact, in a new Manhattan Institute report, Notre Dame Law Professor Nicole Stelle Garnett and I discover that states throughout the country are breaking the law by persecuting religious schools and charities.
The Supreme Court, in last year’s Carson v. Makin, clarified that states cannot exclude religious organizations because they are religious or force such organizations to secularize their offerings. Despite the clarity of the court’s First Amendment jurisprudence, many states, including some that one would expect to embrace religious freedom, continue to discriminate against religious organizations unfairly.
Here are nine of the most unexpected offenders.
Disabled students suffer because of Virginia’s violation of the First Amendment. Virginia’s school districts and local governments can contract with any “public or private nonsectarian school, agency, institution,” or “nonsectarian child-day programs” to provide special education services. If the nearest option or best fit for your student happens to have a religious affiliation, your child will have to attend a further or worse option to receive funding.
Historically black colleges and universities and other nonprofit institutions of higher education are unconstitutionally prevented from using state funds for facilities or programs related to “sectarian instruction.” Virginia singles out religious institutions for worse treatment under industrial development powers and in eligibility for historic preservation consideration and grants, and excludes them from receiving funds to provide social services. Egregiously, this latter provision specifically singles out some religious organizations — the YMCA, YWCA, Habitat for Humanity, and the Salvation Army — for special treatment.
Virginia provides a tax rebate for fuel used in school buses but excludes buses used to take students to religious schools.
Montana similarly provides funding for day education of students in private institutions so long as they are at “private, non-sectarian schools.” Like Virginia, Montana excludes religious schools from its school bus fuel tax rebate.
Montana’s work-study program allows students to work in construction and building maintenance but excludes from eligibility any building “used or to be used for sectarian instruction or as a place of worship.”
Religious health care providers face restrictions on how they can use funds under a Montana low-cost capital scheme for new buildings. And while Montana offers a permissive array of nonprofit-themed specialty license plates, including plates celebrating a soccer club, a shooting club, and a group that feeds animals, religious nonprofits are explicitly excluded from the plate program.
Georgia does not allow pre-kindergarten providers to give any religious instruction. It specifies that this rule extends even to programs that have both approved secular and religious versions and notes that no funds may be spent on religious instruction.
Religious organizations are excluded from the state’s rural loan guarantee program. Suppose a church in Georgia wants to use taxpayer funds to feed the hungry, house the homeless, or provide health care. In that case, it must fastidiously maintain a separate budget for its welfare ministries. This paperwork nightmare means many churches offer fewer services than they otherwise might.
Georgia even imposes restrictions on the generosity of its employees, empowering them to contribute to nonprofits but excluding any “religious organization.”
Though in better shape than Georgia, Alabama still falls well short of Carson’s requirements. The state allows a moment of silence during the pre-K school day but forbids religious instruction. Any religious activities must take place “outside of … the school day.”
In much the same way, Alabama theoretically allows students to use its higher education grants at religious colleges but requires that schools accepting the grants use them only for “essentially secular education functions” and “carefully segregate funds to ensure that this rule is enforced.” The law would presumably exclude from funding those students who are pursuing careers as clergy, religious school teachers, and faith-based counselors.
Alabama places restrictions on funding structures used for religious purposes, restricts the content of services at family resource centers and municipal special health care facilities, and excludes faith-based organizations from the state’s employees’ combined charitable campaign.
Perhaps most amusingly, Alabama does not allow religious nonprofits to enjoy proceeds from greyhound racing days.
Arkansas similarly restricts pre-K content to be “secular and neutral with respect to religion.” It also requires that distance-learning providers be nonsectarian.
Arkansas subjects its citizens to a lifetime of unconstitutional forced secularism. A family of a child under 2 will find that Arkansas’ Life Choices Lifeline Program permits only nonsectarian content. Arkansawyers in programs receiving youth development grants cannot participate in religious instruction, services, or programming. Elders in the Arkansas Older Workers Community Service Employment Program cannot build or maintain any facilities used for religious instruction or worship.
Despite the state’s proud history as the buckle of America’s Bible Belt, its Small Museum Grant Program excludes any religious projects. Local waterworks commissions can make donations to community chests but not to any sectarian nonprofits.
While other states place unconstitutional restrictions on the activities of faith-based pre-K providers, Oregon goes an egregious step further, outright banning religious organizations from its universal pre-K program.
Oregon violates Carson in later education too. High school students can enroll in college classes through the state’s Expanded Options Program but may only select courses that are “nonsectarian.” Similarly, while the state can contract with private institutions, courses must be “nonsectarian educational services” or “nonsectarian subjects completed by undergraduate students.”
Florida has provided grants to faith-based, in-person education providers through its Family Empowerment Scholarship program. But its laws, while conforming to abandoned Supreme Court precedent, must comply with the demands of the First Amendment as clarified in Carson.
At present, Florida does not allow sectarian organizations to participate in its remote learning program. It operates two separate scholarship programs that exclude religious schools and refuse funding to students pursuing degrees in “theology or divinity.”
Perhaps most concerningly, Florida places restrictions on the content of programming provided to victims of domestic violence. Its Batterer Intervention program excludes any study of “faith-based ideology,” even when such content would be helpful to victims.
Missouri has been at the center of recent caselaw clarifying the First Amendment since the Supreme Court found that Missouri violated the free exercise clause by excluding a faith-based preschool from a state program that provided recycled tires for playground surfacing. While Missouri has improved its laws, work remains to be done.
Juniors and seniors in private Missouri colleges can get state loans for tuition. But those loans cannot be used for any “sectarian” instruction. Missouri’s Health and Educational Facilities Authority Act provides loans for educational facilities except for “property used or to be used for sectarian instruction or study.”
More concerningly, Missouri does not allow support services for high-risk students to be offered at private, religious schools. This means a struggling student at a St. Louis Catholic high school or Lutheran middle school would have to leave campus to receive the services they need to be successful. This burden can make much-needed services inaccessible for the students most in need of the rigor and structure afforded by parochial schools.
Under Indiana’s work-study program, students cannot be paid for “sectarian” work. The state’s Division of Family Resources must exclude any sectarian work from its contracts with nonprofits. If a county wants to support its local nonprofit hospital, it can only do so if the hospital’s board is “nonsectarian.” This provision excludes struggling faith-based community hospitals from support despite their essential services and, in many cases, decades as community anchors.
An Indiana historic preservation grant applicant must have “no affiliation with religion.” Most disturbingly, Indiana regulates the religious expression of the dead, with a law stating that a memorial corporation cannot “promote the interests or teachings of a specific church, sect, school, or creed.”
The Path Forward
American conservatives often think of themselves as the defenders of the First Amendment and religious liberty in particular. Many are probably shocked to see their states among the worst violators of the Carson principle.
Fortunately, red states should be able to act quickly to remedy these violations by amending laws or having their state attorneys general issue opinion letters committing to the state’s conformity to the First Amendment.
For states that refuse to meet their constitutional obligations, lawyers from the Becket Fund, law school religious liberty clinics, and think tanks stand ready to vindicate infringed religious liberties.