by Mike Berry, Senior Counsel and Executive Director of External Affairs • 3 minutes
The U.S. Department of Justice’s Office of Legal Counsel (OLC) recently issued a landmark legal opinion that fundamentally changes how the federal government interacts with faith-based organizations. The opinion declares that blocking federal funds from being used for religious purposes or by religious groups is generally unconstitutional.
Here is a breakdown of what this decision means and why it matters.
The Problem: The Locke Block
In 2004, the Supreme Court issued one of its more infamous decisions in Locke v. Davey. In Locke, the Court ruled that a state could deny a scholarship to Joshua Davey because he planned to pursue a religious degree. Davey was free to attend any school, even a religious school, so long as he didn’t actually study religion.
For decades, federal funding programs operated under a strict rule: the government could give money to a religious charity for a non-religious purpose (like operating a homeless shelter or providing disaster relief), but that money must never touch explicitly religious activities (like prayer or religious instruction).
The Solution: Un-Locke-ing the Door to Religious Liberty
This new OLC memo sweeps that distinction away. It concludes that restricting federal funding based on either a group’s religious status (who they are) or its religious use of the funds (what they do) violates the First Amendment’s Free Exercise Clause. Under this new guidance, if the government opens up a funding program to the public, it cannot exclude an organization based on its religious status, or even if it plans to use that funding for religious activities.
What Does this Actually Mean?
The immediate focus of the OLC memo centers on the Department of Health and Human Services (HHS), which administers billions of dollars in federal grants for social services, childcare, and healthcare.
Why This Matters
This OLC opinion represents a major victory for religious liberty. No American should ever be forced to choose between their beliefs and participating in civic life. For far too long, people of faith have had to tolerate religious discrimination in government funding. Hopefully, this is a giant first step towards ending that discrimination.
First Liberty’s Role
First Liberty’s victories at the U.S. Supreme Court played a vital role in shaping the DOJ’s opinion. In fact, the memo directly cites two of our cases as the legal basis for updating and issuing this guidance.
Our victory in Kennedy v. Bremerton School District (the Coach Kennedy case) got rid of nearly fifty years of terrible case precedent known as the “Lemon test.” In Kennedy, the Supreme Court replaced the Lemon test with an analysis rooted in America’s history and tradition.
And our victory in Carson v. Makin (the Maine school choice case) made it clear that states cannot exclude Christian students from receiving funds just because they choose to attend a Christian school.
The OLC opinion relies heavily on both of these cases, and others, to reach its conclusion that the federal government may not discriminate against people of faith even if they will use those funds for a religious purpose. It is this feature that highlights what we hope will be a future First Liberty Supreme Court victory.
There have been repeat attempts to limit the Locke decision’s discriminatory effects against people of faith. For example, in 2017, 2020, and again in 2022, the Supreme Court ruled that states cannot restrict funds to religious schools just because they are religious. But Locke has never been formally overturned. That could change in the very near future.
As we recently announced, First Liberty has teamed up with the National Legal Foundation, Claybrook LLC, Troutman Pepper, and Alliance Defending Freedom in a case that asks the nation’s highest court to review and correct the precedent set in Locke v. Davey. Our case involves college student Bethany Hall, who was told she could not receive state tuition aid because she chose a religious degree.
It is especially gratifying that we are working with longtime network attorney, Joshua Davey (yes, THAT Joshua Davey), on this case. And if we prevail, this OLC opinion will have one more case to cite as positive authority.
