By David J. Benger
Picture two soup kitchens on the same block. Both feed the same hungry neighbors. Both take federal money. The secular one may hang whatever it likes on its walls and say whatever it likes before the meal. The synagogue-run one may not pause to say a blessing with the people it is feeding, at least not unless it holds that blessing “separately in time or location” from the funded meal, makes the separation “completely clear to the consumer,” and allocates the costs between the two activities on its books.
Same meal. Same neighbors. Different rules.
On Aug. 25, the Justice Department’s Office of Legal Counsel concluded that this arrangement is not merely strange. It is unconstitutional.
The Office of Legal Counsel is the component of the Justice Department that issues formal written legal opinions for the executive branch. When OLC answers a question, the answer functions as the government’s own controlling view of the law until a court or a later opinion says otherwise.
It is the closest thing the executive branch has to an in-house supreme court. This opinion was addressed to the director of the Office for Civil Rights at the Department of Health and Human Services, which had asked whether it needed to rethink how it handles grants to faith-based organizations.
OLC’s answer was yes. Three federal statutes that HHS administers, the welfare law known as PRWORA, the Public Health Service Act, and the Child Care and Development Block Grant Act, each bar recipients from spending federal funds on “sectarian worship, instruction, or proselytization.” OLC concluded that the Establishment Clause does not require those restrictions, and that the restrictions violate the Free Exercise Clause because they single out religious providers based on anticipated religious use without any compelling justification. The practical consequence is that HHS may stop enforcing them, provided it reports that decision to Congress within 30 days.
The opinion’s most useful contribution is historical. Those funding restrictions were not written out of hostility to religion. As OLC tells it, they were drafted in the 1990s to satisfy Lemon v. Kurtzman and the cases that grew from it, which asked whether government action advanced religion and which produced both the “pervasively sectarian” limitation and the line between direct and indirect funding. Congress was trying to comply with the Supreme Court’s instructions as they
then stood.
Those instructions have since changed. In Kennedy v. Bremerton School District, the court abandoned Lemon and its endorsement-test offshoot in favor of asking what the framers actually sought to prohibit when they wrote the Establishment Clause. And in Trinity Lutheran, Espinoza and Carson, the court held that excluding religious institutions from generally available public benefits triggers the most demanding constitutional scrutiny. Carson, as OLC reads it, closed the escape hatch: the distinction between excluding an organization for being religious and excluding it for acting religiously does not hold up in theory or in practice.
Rather than asking whether funding “advances religion,” OLC walks through the historical hallmarks of an established church: coerced religious exercise, government control over doctrine and personnel, punishment of dissenting churches, restricted political participation for religious dissenters, compelled and preferential financial support and monopolistic control over civil functions. It then finds none of them present when the government pays a religious charity to feed people. Nobody is taxed to support a church. Nobody is compelled to attend one. No denomination holds a monopoly on anything.
The programs at issue fund exactly the work Jewish communal life already does: food pantries, addiction and mental health services, child care, family support. Under the current rules, a Jewish provider that wants federal help must bifurcate itself, drawing a line through its own operations and documenting which side of the line each activity falls on. Small organizations often conclude it is not worth it and stay out.
Much of the organized Jewish community has long championed strict separation between religion and government, and for good reason. That instinct was honorable, but it was built for a legal world that no longer exists.
Consider the alternative the current rules require: a federal official deciding what counts as “worship” or “instruction” for a given faith. Minority faiths, whose categories rarely match the majority’s assumptions, lose that game every time. A neutral program open to all comers protects us. A program that requires bureaucrats to define worship does not.
If HHS follows this opinion, more religious organizations will partner with the government, and they will do that work as their full selves. For a community that has been feeding the hungry since long before there were federal grants, that is a
good day.
David J. Benger is litigation counsel at the National Jewish Advocacy Center and a fellow at Emory University Law School.