Department of Justice says government can’t restrict funding based on religious status

The U.S. Department of Justice this week said that the government’s practice of restricting federal funding from religious activities is “presumptively unconstitutional,” paving the way for greater public funding of religious groups.

Such restrictions on federal funding are made “without any compelling government interest,” the Justice Department said in an Aug. 25 memorandum opinion issued to the Office for Civil Rights in the Department of Health and Human Services.

In its 2004 decision Locke v. Davey, the U.S. Supreme Court held that public authorities are free to withhold funding from programs and activities that are explicitly religious in nature.

In its memorandum, however, the Justice Department’s Office of Legal Counsel said restricting federal funding based on either the religious status of an organization or the use of funds for religious purposes is “not required” under the U.S. Constitution.

Such restrictions “discriminate based on anticipated religious use without any compelling governmental interest,” the memorandum said, and as a result they “violate the Free Exercise Clause.”

“Use-based religious restrictions on generally available federal funding programs are presumptively unconstitutional,” the document said.

The memorandum specifically addressed programs administered by the U.S. Department of Health and Human Services, which controls billions of dollars in federal funding. It was not immediately clear if the directive applied to other federal departments. A spokesman for the Justice Department did not immediately respond to a request for comment.

The religious freedom legal group First Liberty, meanwhile, hailed the memorandum as “a major victory for religious liberty.”

Faith-based organizations and schools “can now apply for and utilize federal grants without scrubbing the religious aspects of their programs,” the group said.

First Liberty argued that opinions from the Office of Legal Counsel “serve as binding legal guidance for the executive branch,” meaning the memo “effectively instructs all federal agencies to rewrite their grant-making rules to align with this new standard.”

The group noted that one of its network attorneys is Joshua Davey, part of the namesake of the 2004 Supreme Court case that established the precedent of restricting federal funds for religious activities and groups.

That decision “has never been formally overturned,” First Liberty said, but “that could change in the very near future.”