Constitutionality of Religious Restrictions on the Use of Federal Funds

Opinion

(Slip Opinion)

Constitutionality of Religious Restrictions on the Use of Federal Funds

Federal statutory provisions and regulations that restrict federal funding based on either the religious status of a program provider or anticipated religious uses of the funds are not required under the Establishment Clause. Because the statutory and regulatory religious restrictions applicable to programs administered by the Department of Health and Human Services discriminate based on anticipated religious use without any compelling governmental interest, they violate the Free Exercise Clause. Use-based religious restrictions on generally available federal funding programs are presumptively unconstitutional.

August 25, 2026

MEMORANDUM OPINION FOR

THE DIRECTOR OF THE OFFICE FOR CIVIL RIGHTS DEPARTMENT OF HEALTH AND HUMAN SERVICES

Faith-based organizations across the United States deliver vital charitable services—feeding the hungry, supporting families, and helping individuals overcome addiction. The federal government helps fund this work. But the Department of Health and Human Services (“HHS”) has identified several statutes applicable to programs and grants it administers that restrict the use of federal funds when faith-based organizations are involved , including: the Personal Responsibility and Work Opportunity Act of 1996 (“PRWORA”), 42 U.S.C. § 604a(j); the Public Health Service Act (“PHSA”), id. §§ 290kk-2, 300x-65(i); and the Child Care and Development Block Grant Act of 1990 (“CCDBGA”), id. §§ 9858k(a), 9858l(a)(4).

In 2019, our Office concluded that a statutory restriction on the extension of federal loans to historically black colleges and universities “for facilities that are predominantly used for devotional religious activity” did not violate the Free Exercise Clause under then-prevailing Supreme Court doctrine. Religious Restrictions on Capital Financing for Historically Black Colleges and Universities, 43 Op. O.L.C. 191, 192 (2019) (“HBCU Religious Restrictions”). We reached that conclusion by asking “whether the restriction is based upon an institution’s religious status or whether it is based upon how the federal support would be used.” Id. at 196. We remained “mindful, however, that this area of law [was] still being developed .” Id. at 197.

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HHS has asked whether it must update its framework for assessing grants to faith-based organizations in the light of the Supreme Court’s intervening precedent in Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020), Kennedy v. Bremerton School District, 142 S. Ct. 2407 (2022), and Carson ex rel. O.C. v. Makin, 142 S. Ct. 1987 (2022), decisions that post-dated our 2019 HBCU Religious Restrictions opinion. See Memorandum for Josh Craddock, Deputy Assistant Attorney General, Office of Legal Counsel, from Emily Claire Mimnaugh, Deputy General Counsel, Department of Health and Human Services, Re: Request for Opinion on Government Funding and Religious Use at 4–5 (July 1, 2026) (“HHS Memorandum”). Specifically, HHS asked: (1) whether the religious restrictions applicable to HHS are required by the Establishment Clause; and (2) if not, whether they are constitutional under the Free Exercise Clause. See id. at 1. The answer to both questions is no. To the extent our 2019 opinion indicated otherwise, e.g., HBCU Religious Restrictions , 43 Op. O.L.C. at 208–13, it no longer reflects the current state of the law.

Our analysis has three parts. Part I describes the statutory religious restrictions applicable to HHS-funded programs. Part II explains why those religious restrictions are not required by the Establishment Clause. Part III determines that they violate the Free Exercise Clause. Although we address the Religion Clauses separately for analytical clarity, we do not suggest that the Clauses are in tension. Indeed, “the Clauses have ‘complementary ’ purposes, not warring ones where one Clause is always sure to prevail over the others.” Kennedy, 142 S. Ct. at 2426. There is “no conflict between the constitutional commands” of the Free Exercise and Establishment Clauses. Id. at 2432.

I.

A.

Enacted only a few years apart, the PRWORA and PHSA provisions at issue were both part of the “Charitable Choice” movement. See generally 42 U.S.C. §§ 604a, 290kk-1, 300x-65(i), 9858k(a), 9858l(a)(4); see also Jonathan Friedman, Charitable Choice and the Establishment Clause, 5 Geo. J. on Fighting Poverty 103, 113 (1997). And although the CCDBGA was not part of Charitable Choice, its funding restriction on religious

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activity and its limitation on religious decisions in employment and admissions share many of the same features and motivations.

“The central objective of Charitable Choice [was] to involve faith-

based providers in anti-poverty efforts, while protecting the religious integrity and character of those organizations.” Friedman, 5 Geo. J. on Fighting Poverty at 113. For PRWORA, Charitable Choice meant “allow [ing] States to contract with religious organizations” to “administer and provide services under” various welfare programs. 42 U.S.C. § 604a(a)(1)(A), (b). For the PHSA, it meant “allow[ing] religious organizations to be program participants on the same basis as any other nonprofit private provider” in the administration of substance-abuse programs. Id. § 290kk-1(b). The CCDBGA also assumed that religious child-care providers would be eligible to participate on an equal basis with other private providers. See id. § 9858l. As described in President George W. Bush’s follow-on Faith-Based and Community Initiatives, the goal was “to enlist, equip, enable, empower, and expand the work of faith-based and other community organizations.” Exec. Order No. 13199, 66 Fed. Reg. 8499, 8499 (Jan. 29, 2001); see also Exec. Order No. 13279, 67 Fed. Reg. 77,141, 77,142–43 (Dec. 12, 2002); Nicole Stelle Garnett & Cameron Grinnell, Manhattan Inst., The Persistence of the Unconstitutional Status /Use Distinction in Federal Grants to Religious Nonprofits at 2–3 (2025), https://perma.cc/F9SD-AA66. Charitable Choice and its kin thus reflected an affirmative policy of inclusion toward religious organizations.

Although Charitable Choice aimed to include religious institutions in these government funding programs, it also imposed use-based religious restrictions geared toward avoiding perceived Establishment Clause snares. See Brian Craig Kimball, Comment, The Federal Faith-Based and Community Initiative: A Guide for Future Legislation, 71 Miss. L.J. 241, 259–60 (2001). 1 PRWORA states that “[n]o funds provided directly to institutions or organizations to provide services and administer programs

1 Senator John Ashcroft, one of the chief architects of Charitable Choice, argued that

the restrictions “embod[y] U.S. Supreme Court case precedent to clarify what is constitutionally permissible when state and local governments cooperate with the religious and charitable sector of society.” Friedman, 5 Geo. J. on Fighting Poverty at 114 (citation omitted). Senator Ashcroft believed that “the focus should not be on whether sectarian organizations receive public funds, but on whether those funds are used for religious activities.” Id. (emphasis added).

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under [PRWORA] shall be expended for sectarian worship, instruction, or proselytization.” 42 U.S.C. § 604a(j).2 The PHSA similarly provides that “[n]o funds provided under a designated [PHSA] program shall be expended for sectarian worship, instruction, or proselytization.” Id. § 290kk-2. A separate provision restricts funds provided “through a grant or contract to a religious organization to provide services under any [PHSA] substance abuse program . . . for sectarian worship, instruction, or proselytization.” Id. § 300x-65(i).3 The CCDBGA states that “[n]o financial assistance provided under this subchapter, pursuant to the choice of a parent under section 9858c(c)(2)(A)(i)(I)”—that is, the option “to enroll [a] child with a child care provider that has a grant or contract for the provision of such services ”—“or through any other grant or contract under the State plan, shall be expended for any sectarian purpose or activity, including sectarian worship or instruction.” Id. §§ 9858k(a), 9858c(c)(2)(A)(i)(I). Congress deliberately excluded indirect assistance from that provision, providing that child-care certificates “shall not be considered to be grants or contracts ,” and that “[n]othing in this subchapter shall preclude the use of such certificates for sectarian child care services if freely chosen by the parent.” Id. § 9858n(2).4 The CCDBGA also imposes an anti- discrimination requirement on certain religious child-care providers— those receiving 80% or more of their operating budget from government funding—as a condition on the receipt of further funding under the program . Such providers must not “discriminate against any individual” in either the employment of persons who primarily work directly with children or in admissions “because of the religion of such individual.” Id. § 9858l(a)(4).

2 This restriction affects HHS’s Administration for Children and Families (“ACF”),

which administers block grants to states for the Temporary Assistance for Needy Families (“TANF”) program, as well as the states that provide services through charitable, religious , or private organizations. 42 U.S.C. § 604a(a)(1)(A).

3 This restriction affects programs administered by the Substance Abuse and Mental

Health Services Administration that award assistance to public or private entities for the prevention or treatment of substance abuse. 42 U.S.C. § 290kk(a). It also affects funded states that partner with non-governmental organizations for the provision of substance- abuse services. Id. § 300x-65(j).

4 The CCDBGA created the Child Care and Development Fund program. Its statutory

restriction affects ACF’s administration of block grants to states for child-care programs, as well as the states themselves when they partner with child-care providers.

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Two features indicate that these restrictions were deliberately crafted to avoid problems under then-current Supreme Court Establishment Clause precedents—which the Court has since abrogated or undermined. See Part II.

First, to avoid the “special Establishment Clause dangers” of directpayment programs, Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 842 (1995), the restrictions apply to funds provided directly to religious institutions rather than indirect-payment programs of “true private choice,” Zelman v. Simmons-Harris, 536 U.S. 639, 649 (2002). PRWORA expressly applies to “funds provided directly” to religious institutions. 42 U.S.C. § 604a(j). The PHSA restriction similarly applies to “funds provided under a designated program,” id. § 290kk-2, which is defined to include “discretionary and formula grant programs administered by the Substance Abuse and Mental Health Services Administration [“SAMHSA”] that make awards of financial assistance to public or private entities for the purpose of carrying out activities to prevent or treat substance abuse,” id. § 290kk(a). In other words, the statutory restriction applies only to programs that provide grants directly “to” private organizations (such as religious organizations), as opposed to programs that provide vouchers or other forms of indirect funding. Cf., e.g., id. § 604a(a)(1)(B). And the CCDBGA restriction applies to financial assistance provided directly to “child care provider[s],” id. § 9858c(c)(2)(A)(i)(I), and to other end recipients of federally funded grants or contracts, see id. §§ 9858k(a), 9858l. In the same breath, it allows indirect religious uses of child-care certificate funds, see id. § 9858n(2), tracking the private-choice line drawn in Zelman, see 536 U.S. at 649.

Second, the restrictions prohibit only the use of funds for “sectarian worship, instruction, or proselytization,” id. §§ 604a(j), 290kk-2; see also id. § 9858k(a) (“sectarian purpose or activity, including sectarian worship or instruction”), or the receipt of certain funds if providers make religious employment or admissions decisions, id. § 9858l(a)(4). These restrictions ostensibly enforced the Supreme Court’s “proscription against ‘funding a specifically religious activity in an otherwise substantially secular setting .’” Bowen v. Kendrick, 487 U.S. 589, 613 (1988) (alteration accepted) (quoting Hunt v. McNair, 413 U.S. 734, 743 (1973)). Funding to “pervasively sectarian” institutions was presumed to further religious activity. Id. at 610.

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B.

HHS implements a similar religious restriction for many programs through 45 C.F.R. part 87. For direct-assistance programs, the relevant regulations “prohibit[] organizations from engaging in explicitly religious activities . . . as part of the HHS-funded program or service.” HHS Memorandum at 5 (citing 45 C.F.R. § 87.3(d)). According to the regulations, “[t]hose activities must be offered separately in time or location and participation must be voluntary,” while “indirect assistance is not subject to that restriction.” Id. Part 87 also prohibits organizations receiving direct aid from “discriminat[ing] against a program beneficiary or prospective program beneficiary on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice.” 45 C.F.R. § 87.3(f). HHS’s regulations additionally include “program-specific analogues” applicable to the Substance Abuse Prevention and Treatment Block Grant; the Projects for Assistance in Transition from Homelessness Formula Grants; and discretionary funding under the PHSA for SAMHSA’s substance-abuse prevention and treatment services. Id. at 5–6 (citing 42 C.F.R. §§ 54.1–54.8, 54a.1–54a.8).5 Under these regulations, “[a]ny program with religious content must be a separate and distinct program from the federally funded program, and the distinction must be completely clear to the consumer.” Memorandum for Healthy Marriage and Responsible Fatherhood Federal Grantees, from Administration for Children and Families, Department of Health and Human Services, Re: Separation of Explicitly Religious Activities at *1 (2008) (“HHS, Separation of Explicitly Religious Activities”), https:// perma.cc/ZGQ7-LN42. And if the religious organization chooses to separately offer its course containing religious content, it will be subject to burdensome differentiation and cost-allocation requirements. See id.

For example, if a faith-based organization runs a federally supported soup kitchen, can organizers say a prayer before they serve the meal? 6 Not

5 Other HHS Charitable Choice regulations, which apply to programs authorized under

the Community Services Block Grant Act, raise materially similar constitutional issues. See 45 C.F.R. pt. 1050.

6 See White House Off. of Faith-Based & Cmty. Initiatives, Guidance to Faith-Based

and Community Organizations on Partnering with the Federal Government at 2 (2006) (“GWB Guidance”), https://perma.cc/GUK2-MTU6.

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unless the “explicitly religious activit[y]” of prayer is “separate[] in time or location” from the funded services. 45 C.F.R. § 87.3(d). Similarly, a religious organization that receives federal funds to help unemployed people improve their job skills could not convey their religious teachings about the value and dignity of work. 7 And a religious organization that teaches a federally funded course on healthy marriage and responsible fatherhood could not endorse any religious messages in its program. 8 We understand that such federally mandated bifurcation has proven challenging to small faith-based organizations, and may deter religious institutions from participating altogether in federally funded programs. 9

II.

Three strands of Supreme Court precedent illuminate the history of use- based restrictions on government funding, each of which was rooted in— or absorbed by—the now-defunct precedent of Lemon v. Kurtzman, 403 U.S. 602 (1971). We now describe the Lemon test and the three lines of precedent that grew out of it. We then explain why Lemon was ultimately “abandoned” in favor of a framework based on the original meaning of the Establishment Clause. Kennedy, 142 S. Ct. at 2427. Applying that framework, we conclude that the PRWORA, PHSA, and CCDBGA restrictions are not required by the Establishment Clause.

A.

Our Nation has a mixed history of placing legal restrictions on the provision of government funds to religious institutions. Some parts of this history involve “shameful” restrictions based on religious status. Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plurality opinion). Other parts of that history—relating to restrictions based on religious use—were more wellintentioned but ultimately misguided. The PRWORA, PHSA, and

7 See GWB Guidance at 11.

8 Memorandum for Healthy Marriage and Responsible Fatherhood Federal Grantees,

from Administration for Children and Families, Department of Health and Human Services , Re: Curricula Use and Compliance with 45 CPR Part 87 at 1–2 (Jan. 23, 2008), https://perma.cc/UKL8-RTZ6.

9 See Dep’t of Just., Eradicating Anti-Christian Bias within the Federal Government:

The 2026 Report by the Task Force to Eradicate Anti-Christian Bias at 111 (2026), https://perma.cc/Y38H-P86A.

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CCDBGA restrictions grew out of that history, enacted in response to the Supreme Court’s development of its Religion Clauses jurisprudence over the course of the twentieth century.

1.

Some of the earliest religious restrictions were born of “prejudice,”

Espinoza, 140 S. Ct. at 2271 (Alito, J., concurring), and sought to bar government funding to religious institutions based on their religious status. The most notorious of these was the so-called Blaine Amendment. Proposed in 1875 by Speaker of the House James G. Blaine, this amendment “would have amended the Constitution to bar any aid to sectarian institutions.” Mitchell, 530 U.S. at 828 (plurality opinion). Because “the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, . . . it was an open secret that ‘sectarian’ was code for ‘Catholic.’” Id.; see also Locke v. Davey, 540 U.S. 712, 723 n.7 (2004). Although the Blaine Amendment passed the House, it fell two votes short of the necessary two-thirds majority in the Senate and was never referred to the states for ratification. See Espinoza, 140 S. Ct. at 2268 (Alito, J., concurring).

Restrictions on funds provided to “sectarian” institutions nevertheless made their way into many state laws, “often as a condition of entering the Union.” Id. at 2268–69. For example, Montana’s enabling act required “[t]hat provision shall be made for the establishment and maintenance of systems of public schools . . . free from sectarian control.” Act of Feb. 22, 1889, ch. 180, § 4, 25 Stat. 676, 677; see also Locke, 540 U.S. at 723–24 n.7 (recording that Washington State’s enabling act contained nearly identical language). These state enabling acts “complet[ed] the unfinished work of the failed Blaine Amendment,” and as of 2020, 38 states still had “little Blaine Amendments.” Espinoza, 140 S. Ct. at 2269, 2271 (Alito, J., concurring) (citations omitted); see also Zelman, 536 U.S. at 721 (Breyer, J., dissenting) (observing how anti-Catholic sentiment “played a significant role” in the refusal to “help pay for ‘sectarian’ (i.e., Catholic) schooling ”).

Such status-based religious restrictions are understood to have “a shameful pedigree that we do not hesitate to disavow.” Mitchell, 530 U.S. at 828 (plurality opinion). And the Supreme Court has made abundantly clear that “disqualifying otherwise eligible recipients from a public

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benefit ‘solely because of their religious character’ imposes ‘a penalty on the free exercise of religion that triggers the most exacting scrutiny.’” Espinoza, 140 S. Ct. at 2255 (quoting Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 462 (2017)). They are rightly considered “presumptively unconstitutional.” HBCU Religious Restrictions, 43 Op. O.L.C. at 196. “No matter how narrowly drawn, a religious-funding restriction stemming from ‘hostility toward religion’ is unconstitutional.” Id. at 212 (quoting Locke, 540 U.S. at 721).

2.

Other religious restrictions—such as those that are the subject of this opinion—are more subtle. They seek to place limits on the religious use of government funds. Unlike the status-based restrictions discussed above, these use-based restrictions are not necessarily animated by religious prejudice. As alluded to above, “[w]hat evidence we have . . . suggests that Congress’s motive for these restrictions was likely grounded in a legitimate desire to conform the statute to the Supreme Court’s then- prevailing Establishment Clause precedent, not in religious animus.” Id. at 213.

In Lemon, the Supreme Court “ambitiously attempted to find a grand unified theory,” Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2087 (2019) (plurality opinion), that would provide a “one-size-fits-all test” for applying the Establishment Clause, Shurtleff v. City of Boston, 142 S. Ct. 1583, 1603–04 (2022) (Gorsuch, J., concurring in the judgment). The Court “gleaned” three tests for identifying an Establishment Clause violation from “the cumulative criteria developed by the Court over many years”:

(1) Does the challenged government action “have a secular legislative purpose”?

(2) Is the challenged government action’s “principal or primary effect . . . one that neither advances nor inhibits religion”?

(3) Does the challenged government action “foster an excessive government entanglement with religion”?

Lemon, 403 U.S. at 612–13 (cleaned up). Later, the Court “further . . . refined” these tests to ask simply “whether the challenged governmental

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practice either has the purpose or effect of ‘endorsing’ religion.” County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 592 (1989); see also id. at 628 (O’Connor, J., concurring in part and concurring in the judgment) (explaining that “the endorsement test asks the right question”).

Lemon’s three questions braid three distinct strands of Supreme Court precedent. These in turn influenced the adoption of use-based restrictions on government funding. Many such restrictions fell within the Supreme Court’s “play in the joints” jurisprudence. Others were crafted to reflect the Supreme Court’s “pervasively sectarian” limitation. Still others sought to walk the line drawn by the Court between the “direct” and “indirect” funding of religious institutions. We address each strand of precedent in turn.

a.

Even before Lemon, the Supreme Court described a certain “play in the joints” between the Establishment Clause and the Free Exercise Clause. That phrase originated in Walz v. Tax Commission of the City of New York, when the Supreme Court upheld a tax exemption provided to “religious organizations for religious properties used solely for religious worship.” 397 U.S. 664, 666 (1970). The Court coined that now-famous phrase by reference to government actions that were perceived not to “sponsor[]” or “interfere” with religion or to “have the effect of doing so.” Id. at 669. It identified the “general principle” that the First Amendment “will not tolerate either governmentally established religion or governmental interference with religion.” Id. “Short of those expressly proscribed governmental acts,” the Court explained, there was space for “a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” Id. The tax exemption in Walz fell within this “play in the joints” because it did not violate the “course of constitutional neutrality.” Id. Or, put differently, “the transcendent value of free religious exercise in our constitutional scheme leaves room for ‘play in the joints’ to the extent of cautiously delineated secular governmental assistance to religious [institutions].” Norwood v. Harrison, 413 U.S. 455, 469 (1973).

The Court eventually glossed the “play in the joints” principle to mean that “there are some state actions permitted by the Establishment Clause

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[that are] not required by the Free Exercise Clause.” Locke, 540 U.S. at 718–19; see also Cutter v. Wilkinson, 544 U.S. 709, 719–20 (2005). But “[a]t some point, accommodation may devolve into ‘an unlawful fostering of religion.’” Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 334–35 (1987) (quoting Hobbie v. Unemp. Appeals Comm’n of Fla., 480 U.S. 136, 145 (1987)). Indeed, the entire “play in the joints” enterprise was animated by a desire to “avoid excessive entanglement” between government and religion—a touchstone of the Lemon test. Walz, 397 U.S. at 669–70, 674; see also Amos, 483 U.S. at 335 (noting that Walz “became the third element of the Lemon test”).

But what started as a shield to protect government programs from Establishment Clause challenges eventually turned into a sword. Governments started to argue that the “play in the joints” meant that, just like they were free to include religious organizations in funding programs, they were also free to exclude religious organizations whose use of government funds involved religious uses. The State of Washington successfully pushed this argument to defend its constitutional provision “prohibiting even indirectly funding religious instruction” through a general scholarship program “that w[ould] prepare students for the ministry.” Locke, 540 U.S. at 719. The States of Missouri, Montana, and Maine raised similar “play in the joints” arguments, though each without success. See Trinity Lutheran, 582 U.S. at 458; Espinoza, 140 S. Ct. at 2254; see also Carson, 142 S. Ct. at 2009–10 (Breyer, J., dissenting).

Many remaining use-based restrictions can be understood in the historical context of this “play in the joints” framework. According to that principle, a government had some leeway to either include or exclude religious activities in programs it funded. See Locke, 540 U.S. at 719. Use-based restrictions—such as those incorporated into PRWORA, the PHSA, and the CCDBGA—may simply reflect a policy of exclusion, premised on the government’s so-called “Establishment Clause interest.” Good News Club v. Milford Cent. Sch., 533 U.S. 98, 113 (2001). 10 When

10 Even when the Supreme Court applied the “play in the joints” framework, it repeat-

edly emphasized that states do not have a compelling interest “in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution.” Widmar v. Vincent, 454 U.S. 263, 276 (1981). And in Carson, the Court reemphasized that “an interest in separating church and state more fiercely than

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viewed in this light, some have argued that “States enjoy a degree of freedom to navigate the [Religion] Clauses’ competing prohibitions,” which “includes choosing not to fund certain religious activity where States have strong, establishment-related reasons for not doing so.” Carson, 142 S. Ct. at 2004 (Breyer, J., dissenting).

b.

A second line of precedent prohibited government funds from “flow[ing] to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting.” Hunt, 413 U.S. at 743. This “pervasively sectarian” limitation grew out of a fear that “direct government aid might have” the “primary effect of advancing religion.” Bowen, 487 U.S. at 610 (citation omitted); cf. Tilton v. Richardson, 403 U.S. 672, 685–87 (1971) (plurality opinion); Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 773–74 (1973). “Aid normally may be thought to have a primary effect of advancing religion,” the Court explained, “when it funds a specifically religious activity in an otherwise substantially secular setting .” Hunt, 413 U.S. at 743.

A keen observer might suggest this prohibition against funding “pervasively sectarian” entities depends on the same status-based distinctions that the Supreme Court called “shameful.” Mitchell, 530 U.S. at 828 (plurality opinion). But the Court long stressed that “the proposition that the Establishment Clause prohibits any program which in some manner aids an institution with a religious affiliation has consistently been rejected,” Hunt, 413 U.S. at 742, and that “th[e] Court has never held that religious institutions are disabled by the First Amendment from participating in publicly sponsored social welfare programs,” Bowen, 487 U.S. at 609; see also Mitchell, 530 U.S. at 826–29 (plurality opinion); HBCU Religious Restrictions, 43 Op. O.L.C. at 205–06.

Instead, the “pervasively sectarian” limitation primarily aimed at prohibiting religious uses. Some religious institutions could be trusted to use funds for secular purposes, the Court reasoned, yet it found “a risk that

the Federal Constitution cannot qualify as compelling in the face of the infringement of free exercise.” 142 S. Ct. at 1998 (cleaned up).

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direct government funding, even if it is designated for specific secular purposes, may nonetheless advance [a] pervasively sectarian institution’s ‘religious mission.’” Bowen, 487 U.S. at 610 (emphasis added). Because money is fungible, in other words, granting government funding directly to a “pervasively sectarian” institution—as opposed to merely a religiously affiliated organization—risked having the “primary effect of advancing religion.” Id. at 609–10. The “proscription against ‘funding a specifically religious activity in an otherwise substantially secular setting’” likewise aimed to avoid advancing religion. Id. at 613 (alteration accepted) (quoting Hunt, 413 U.S. at 743).

c.

A third line of cases purported to distinguish between direct and indirect funding to religious organizations. The Supreme Court emphasized the “special Establishment Clause dangers where the government makes direct money payments to sectarian institutions.” Rosenberger, 515 U.S. at 842 (emphasis added); see also Bowen, 487 U.S. at 610; Hunt, 413 U.S. at 743. This was informed by a baseline that “[t]he Establishment Clause . . . prevents a State from enacting laws that have the ‘purpose’ or ‘effect’ of advancing or inhibiting religion.” Zelman, 536 U.S. at 648–49 (citation omitted).

To evaluate whether the government act had a forbidden purpose or effect, the Court drew a distinction between “government programs that provide aid directly to religious [institutions]” and “programs of true private choice, in which government aid reaches religious [institutions] only as a result of the genuine and independent choices of private individuals .” Id. at 649. In these “indirect” cases, the Supreme Court explained that if “a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice,” then “the program is not readily subject to challenge under the Establishment Clause.” Id. at 652. That was because “[t]he incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government.” Id. The direct-indirect distinction, then, was thought to reflect both the first and second elements of Lemon, as captured by the endorsement test. See id. at 669–70

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(O’Connor, J., concurring) (arguing that the direct-indirect cases “focus[] on a narrow question related to the Lemon test” and merely represent “a refinement” of that test).

For this reason, the Supreme Court observed that “[a]ny Establishment Clause objection to the scholarship program” in Espinoza was “particularly unavailing because the government support makes its way to religious schools only as a result of Montanans independently choosing to spend their scholarships at such schools.” 140 S. Ct. at 2254. And in Carson, the Court similarly observed that “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.” 142 S. Ct. at 1997. These cases made clear that if funding reached a religious institution through the choices of independent private actors, then the Establishment Clause did not care how the funding was ultimately used.

3.

For many years, Lemon was the focus of fierce criticism for its “shortcomings ,” which “present[ed] particularly daunting problems.” Am. Legion, 139 S. Ct. at 2080–81 (plurality opinion); see also County of Allegheny, 492 U.S. at 655–56 (Kennedy, J., concurring in the judgment in part and dissenting in part) (observing in 1989 that “[p]ersuasive criticism of Lemon has emerged” and collecting cases). A growing consensus found that Lemon “bypassed any inquiry into the Clause’s original meaning ,” “ignored longstanding precedents,” and “produced only chaos.” Shurtleff, 142 S. Ct. at 1604 (Gorsuch, J., concurring in the judgment). And for decades, Supreme Court justices had cast doubt on whether “the Lemon test [fit] in the larger scheme of Establishment Clause jurisprudence ” at all. Van Orden v. Perry, 545 U.S. 677, 686 (2005) (plurality opinion).

But “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried,” Lemon continued to “stalk[] [the Court’s] Establishment Clause jurisprudence.” Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J., concurring in the judgment); see also id. at 398–99 (counting opinions from justices repudiating Lemon). Thus, while we were forced to conclude in 2019 that, under existing precedent, “antiestablishment interests might justify a use-based religious-funding

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restriction,” HBCU Religious Restrictions, 43 Op. O.L.C. at 208, we nevertheless observed in 2021 that “the Court ha[d] retreated” from “Lemon-based analysis” in the contexts of religious displays and legislative prayers, validating a “historical approach” that is “more consistent with the Nation’s constitutional tradition and the original meaning of the Establishment Clause,” Religious Seasonal Decorations in Federal Government Buildings, 45 Op. O.L.C. __, at *11 (Jan. 15, 2021) (“Seasonal Decorations”).

In 2022, the Court drove a stake through Lemon’s heart. The Supreme Court in Kennedy definitively rejected Lemon for representing an “ahistorical approach to the Establishment Clause” that the “Court long ago abandoned,” along with “its endorsement test offshoot.” Kennedy, 142 S. Ct. at 2427. Kennedy’s conclusive abrogation of Lemon produced a “sea change” in Establishment Clause jurisprudence. Nathan v. Alamo Heights Indep. Sch. Dist., 173 F.4th 576, 591 (5th Cir. 2026) (en banc). Even if the Supreme Court has not overruled each of Lemon’s progeny “by name,” we cannot blindly adhere to faulty precedent when its entire ratio decidendi has been eviscerated. Id. Any remaining “doubt” we had about the status of these and other Lemon-era precedents, see HBCU Religious Restrictions, 43 Op. O.L.C. at 205, was resolved by Kennedy, 142 S. Ct. at 2427.

B.

The Supreme Court has now “instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings ’” from the time the First Amendment was ratified. Id. at 2428 (quoting Town of Greece v. Galloway, 572 U.S. 565, 576 (2014)). This approach requires an “analysis focused on original meaning and history,” id., because looking to history can “reveal[] . . . the contemporaneous understanding of ” the Establishment Clause, Lynch v. Donnelly, 465 U.S. 668, 673–74 (1984) (examining “an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789”). It is to this historically based analysis that we now turn.

To identify the historical practices and understandings relevant to the Establishment Clause, the Supreme Court has pointed us toward the “hallmarks of religious establishments the framers sought to prohibit

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when they adopted the First Amendment.” Kennedy, 142 S. Ct. at 2429 & n.5; see also Shurtleff, 142 S. Ct. at 1609–10 (Gorsuch, J., concurring in the judgment) (identifying the hallmarks of a religious establishment). 11 This Office has long looked to such historical practices to inform its views of the Religion Clauses, and criticized the Lemon-era failure to “engage in any serious analysis of the historical understanding of establishment .” Memorandum for the Files, from Attorney-Adviser, Office of Legal Counsel, Re: Historical Understanding of Religion Clauses at 36 (Mar. 17, 2004) (“File Memorandum”). As this Office has explained, “the concept of a national ‘establishment’ at the time of the Founding did not refer to any government action touching religion, but rather to a distinctive form of support, enforcement, and control of religious faith.” Seasonal Decorations at *8. “The state religious establishments that the Founders sought to protect from federal interference” often “involved some combination of financial support for a particular church, state control over religious doctrine, religious compulsion, prohibitions on worship in other churches, the use of church institutions for public functions, and ‘religious tests’ for political participation and public office.” Id.

“[C]oercion . . . was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.” Kennedy, 142 S. Ct. at 2429. For this reason, the government “may not make a religious observance compulsory.” Zorach v. Clauson, 343 U.S. 306, 314 (1952). Nor may the government “coerce anyone to attend church,” id., or require participation in “a formal religious exercise,” Lee v. Weisman ex rel. Weisman, 505 U.S. 577, 589 (1992). Though an important hallmark, “coercion has not become the new sine qua non for all future Establishment Clause violations.” Barclay, 108 Iowa L. Rev. at 2099. Additional hallmarks include:

• Governmental “control over the doctrine and personnel of the established church.” Shurtleff, 142 S. Ct. at 1609 (Gorsuch, J., concur-

11 Scholars of the Religion Clauses have drawn on a wealth of historical material to

identify those hallmarks. See, e.g., Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2110–12, 2131 (2003); Stephanie H. Barclay, The Religion Clauses After Kennedy v. Bremerton School District, 108 Iowa L. Rev. 2097, 2104 (2023); Stephanie H. Barclay, Brady Earley & Annika Boone, Original Meaning and the Establishment Clause: A Corpus Linguistics Analysis, 61 Ariz. L. Rev. 505, 555–56 (2019).

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ring in the judgment); cf. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 188 (2012) (recognizing the “ministerial exception” to laws that would otherwise “interfere [] with the internal governance of the church, [or] depriv[e] the church of control over the selection of those who will personify its beliefs”); Watson v. Jones, 80 U.S. 679, 727 (1872) (noting that when “questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories,” then “legal tribunals must accept such decisions . . . as binding on them”).

• Punishment and suppression of dissenting churches and individuals for their religious exercise. See Shurtleff, 142 S. Ct. at 1609 (Gorsuch, J., concurring in the judgment).

• Restricted political participation for dissenting churches and individuals . See Torcaso v. Watkins, 367 U.S. 488, 489–90 (1961); cf. McDaniel v. Paty, 435 U.S. 618, 628–29 (1978) (plurality opinion ).

• Compelled “financial support for the established church, often in a way that preferred the established denomination over other churches,” Shurtleff, 142 S. Ct. at 1609 (Gorsuch, J., concurring in the judgment), and “especially in the form of land grants and religious taxes,” Nathan, 173 F.4th at 601. Neutrality is key here, because “[t]he clearest command of the Establishment Clause is that the government may not officially prefer one religious denomination over another.” Cath. Charities Bureau, Inc. v. Wis. Lab. & Indus. Rev. Comm’n, 145 S. Ct. 1583, 1591 (2025) (cleaned up).

• Giving the established church “monopolistic control over civil functions,” Shurtleff, 142 S. Ct. at 1609 (Gorsuch, J., concurring in the judgment), especially to carry out “important, discretionary governmental powers,” Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 127 (1982).

Such hallmarks are “helpful analytical signposts” to guide the historical analysis that is designed to ultimately point us toward the “lodestar” of identifying true “founding-era religious establishments.” Nathan, 173 F.4th at 601.

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C.

The statutory religious restrictions in PRWORA, the PHSA, and the CCDBGA are not required by the Establishment Clause, properly understood . Measured against the historical hallmarks of a religious establishment , the funding programs that those restrictions qualify bear none of the features that the Founding generation understood to constitute a “law respecting an establishment of religion.” U.S. Const. amend. I. And two centuries of federal practice confirm what the hallmarks indicate: The government may engage religious institutions to deliver civil services on neutral terms, and may pay them for doing so, without creating a religious establishment. We first explain why the hallmarks are absent, and then how historical practice confirms that conclusion.

1.

Start with the hallmark of coercion. Providing religious institutions equal access to government funding programs does not “impermissibl[y] coerc[e]” either those religious institutions or the American public. Kennedy , 142 S. Ct. at 2429. The government compels no organization to seek a grant, and no beneficiary to accept services from a religious provider or to participate in religious practices. Indeed, Congress took pains to ensure the absence of coercion. A PRWORA or PHSA beneficiary who objects to the religious character of services provided is entitled to services “from an alternative provider that is accessible to the individual” and of no lesser value, together with notice of that right. 42 U.S.C. § 300x-65(e)(1); see also id. § 604a(e). And the CCDBGA requires states to offer parents child-care certificates redeemable at the provider of their choosing. Id. § 9858c(c)(2)(A). Whatever these programs do, they do not “make a religious observance compulsory,” Zorach, 343 U.S. at 314, nor require participation in “a formal religious exercise,” Weisman, 505 U.S. at 589. That is so regardless of how the funds are ultimately spent.

Consider next governmental control over the doctrine and personnel of the established church. The statutes here not only avoid this hallmark but affirmatively guard against it. A religious provider “shall retain its independence from Federal, State, and local governments, including such organization’s control over the definition, development, practice, and expression of its religious beliefs,” and no government may require it to

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“alter its form of internal governance” or to “remove religious art, icons, scripture, or other symbols.” 42 U.S.C. §§ 300x-65(c), § 604a(d). The religious restrictions are not what secure those protections; to the contrary , the restrictions threaten them. As we explain in Part III.C, a restriction that turns on whether a given activity constitutes “sectarian worship, instruction, or proselytization” cannot be administered without recourse to governmental judgments about religious doctrine. Likewise, the CCDBGA prohibition on religious discrimination in employment and admissions decisions for certain child-care providers, id. § 9858l(a)(4), affects providers with co-religionist or similar requirements by curtailing their control over internal governance and the expression of their religious beliefs. “[T]he notion that the First Amendment would require a religious institution that received federal support for its charitable activities to forfeit control over its religious character, identity, and mission”—simply because it “considered faith in its hiring practices”—“would have left the founders speechless.” File Memorandum at 35–36.

The next two hallmarks are plainly inapplicable. Congress has not punished or suppressed dissenting churches or individuals for their religious exercise. See Shurtleff, 142 S. Ct. at 1609 (Gorsuch, J., concurring in the judgment). To the extent it has suppressed individuals for their religious exercise at all, it has done so across the board in favor of secular beliefs. Nor has it restricted the political participation of religious dissenters or imposed any religious test for participation in these programs. See Torcaso , 367 U.S. at 489–90. These hallmarks describe the machinery by which an establishment enforces religious conformity. A grant program open to all providers—which no organization is obligated to join and no beneficiary obligated to use—employs none of these tactics.

The fifth hallmark is “compelled financial support, especially in the form of land grants and religious taxes,” Nathan, 173 F.4th at 601, “often in a way that prefer[s] the established denomination over other churches,” Shurtleff, 142 S. Ct. at 1609 (Gorsuch, J., concurring in the judgment). True, PRWORA, the PHSA, and the CCDBGA involve government funding programs that may provide a form of “financial support” to religious institutions. But compulsion and preference are key to this hallmark . The Virginia assessment that provoked James Madison’s Memorial and Remonstrance Against Religious Assessments, for example, was a tithe exacted from every citizen that was earmarked for the support of

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Christian ministers, which had been historically limited to support for the Anglican Church. See Mark Storslee, Church Taxes and the Original Understanding of the Establishment Clause, 169 U. Pa. L. Rev. 111, 120– 21, 125 (2020). The objection was to coerced religious observance, not to the notion that public funds reached a religious institution. See id. at 118. And there is some evidence that Madison objected to “the preferential nature of the assessment.” Rosenberger, 515 U.S. at 854–56 (Thomas, J., concurring) (collecting legal scholarship).

Neither compulsion nor preference are present here. No one is required to tithe to any church. Participation is voluntary on both sides of the transaction. And the programs are scrupulously non-preferential. PRWORA and the PHSA address benefits conferred on equal terms and expressly prohibit discrimination for or against an organization based on its religious character. See 42 U.S.C. §§ 604a(c), 290kk-1(c); 300x- 65(b)(2). The CCDBGA scheme treats sectarian organizations as eligible recipients without regard to religious beliefs or practices and channels assistance according to parental choice. Id. §§ 9858c(c)(2)(A), 9858l. Non-preferentialism of this kind tends to dissipate any establishment concern, because the Supreme Court has “repeatedly upheld programs that evenhandedly allocate benefits to a broad class of groups without regard to religious beliefs or practices.” HBCU Religious Restrictions, 43 Op. O.L.C. at 199; see also Espinoza, 140 S. Ct. at 2254.

The final hallmark is a church’s “monopolistic control over civil functions ,” Shurtleff, 142 S. Ct. at 1609 (Gorsuch, J., concurring in the judgment ), especially to carry out “important, discretionary governmental powers,” Larkin, 459 U.S. at 127. PRWORA, the PHSA, and the CCDBGA each involve the use of private organizations, including religious organizations, to deliver services that the government might otherwise provide itself. See 42 U.S.C. §§ 604a(a)(1)(A), 290kk-1(a)(2), 9858c(c)(2)(A)(i)(I). But the defining feature of this hallmark is exclusivity . The financial support delivered through the statutory schemes at issue here do not confer “a monopoly over a specific function,” as was true of some Founding-era religious establishments. Shurtleff, 142 S. Ct. at 1609 (Gorsuch, J., concurring in the judgment) (emphasis added).

In colonial Virginia, for example, the parish vestry was not a contractor selected from a field of providers on a competitive basis. To the contrary, it was an administrative organ of the government, vested by law with

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authority over “the levyes and assessments for building and repayring the churches, and chappells, provision for the poore, maintenance of the minister, and such other necessary duties for the more orderly manageing of all parociall affaires.” Nathan, 173 F.4th at 597 (quoting Arthur Pierce Middleton, Anglican Virginia: The Established Church of the Old Dominion 1607–1786, at 32–33 (1954)). Virginia “entirely entrusted” relief for the poor and social welfare to a single denomination, funded by a compulsory tithe, to the exclusion of all others such that “[n]o other church played this role.” McConnell, 44 Wm. & Mary L. Rev. at 2170–71 (describing the civil functions delegated to the established church in Virginia).

The statutory schemes at issue here lack those features. They vest no religious body with governmental authority, confer no monopoly over any function, and are open to secular and religious providers alike. See, e.g., 42 U.S.C. §§ 604a(c); 290kk-1(c); 9858l. Where, as here, federal programs operate on an open and neutral basis, the Supreme Court has upheld initiatives that enlist religious organizations to provide civil services, such as education, see Espinoza, 140 S. Ct. at 2254, and foster care, see Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1882 (2021).

2.

Historical practice confirms our application of these hallmarks. Because the Establishment Clause restrained only the federal government before its incorporation against the states and was designed to protect state religious establishments from federal interference, see Seasonal Decorations at *8, federal practice is particularly probative of the Clause’s original meaning. That practice is long, consistent, and largely undisputed. From the Founding through Reconstruction, Congress repeatedly paid religious institutions directly to perform civil functions without raising concerns under the Establishment Clause.

“After the early period of colonial settlement, . . . appropriations from the public treasury for religious uses” were sometimes made “for the educational or charitable functions of religious institutions, such as colleges or orphanages.” McConnell, 44 Wm. & Mary L. Rev. at 2148. Indeed, “virtually every federal official in the early republic, including James Madison and Thomas Jefferson, used federal funds to directly support schools run by religious groups.” Nathan S. Chapman, Forgotten Federal-Missionary Partnerships: New Light on the Establishment

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Clause, 96 Notre Dame L. Rev. 677, 680 (2020). The First Congress—the same body that proposed the First Amendment—reenacted the Northwest Ordinance, which provided that “[r]eligion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Act of Aug. 7, 1789, ch. 8, 1 Stat. 50, 52. Congress later “set aside federal lands in the Northwest Territory and other territories for the use of schools,” many of which “were church-affiliated sectarian institutions.” Rosenberger , 515 U.S. at 862 (Thomas, J., concurring) (collecting statutes).

In 1796, Congress conveyed three tracts of 4,000 acres each to the Society of the United Brethren for Propagating the Gospel Among the Heathen. See Act of June 1, 1796, ch. 46, § 5, 1 Stat. 490, 491. In 1803, the United States undertook treaty obligations to pay “annually for seven years one hundred dollars towards the support of a priest of [the Catholic] religion,” who would engage in “the duties of his office and also to instruct as many of [the Kaskaskia tribe’s] children as possible in the rudiments of literature,” together with “three hundred dollars to assist the said tribe in the erection of a church.” Treaty with the Kaskaskia Tribe, Kaskaskia Tribe-U.S., Aug. 13, 1803, art. 3, 7 Stat. 78, 79. That treaty, which was negotiated and ratified under President Thomas Jefferson, funded three activities remarkably similar to what the PRWORA, PHSA, and CCDBGA restrictions forbid: support of clergy, religious instruction, and the erection of a house of worship.

Congress later made this practice systematic, appropriating large annual sums for Christian denominations and their missionary representatives of “good moral character” to “introduce among the Native Americans the habits and arts of civilization.” Chapman, 96 Notre Dame L. Rev. at 680 (alterations accepted) (quoting Act of Mar. 3, 1819, ch. 85, § 1, 3 Stat. 516, 516 (codified as amended at 25 U.S.C. § 271)). And although the publicly funded “missionaries instructed the students in Christian morality and doctrine,” almost “no one contested the program’s constitutionality.” Id. That was so even though such public-private partnerships “involved governmental funds going to religious associations who used those funds to pay the salary of ordained clergy members and construct buildings used for worship.” Id. at 735.

Congress legislated the same way closer to home. It supported “denominational schools in the District of Columbia until [at least] 1848.”

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Espinoza, 140 S. Ct. at 2258 (citing Michael W. McConnell, Thomas C. Berg & Christopher C. Lund, Religion and the Constitution 319 (4th ed. 2016)). And after the Civil War, it directed the Freedmen’s Bureau to furnish education and relief in cooperation with “private benevolent associations,” Act of July 16, 1866, ch. 200, § 13, 14 Stat. 173, 176, under which the Bureau awarded the greater part of its education funding to religious organizations, see Espinoza, 140 S. Ct. at 2258 (citing McConnell, Berg & Lund at 323). This system of benefits-distribution warrants emphasis because it mirrors the programs before us in important respects. A federal agency delivered social services by contracting with private benevolent organizations; religious and secular associations participated on equal terms; the funds passed directly to the provider rather than through the independent choices of others; and Congress imposed no requirement to segregate religious uses from the funded services.

Instances of public support for religious proselytization and instruction are evidence of what the Founding generation and its immediate successors —including Presidents Washington, Jefferson, Madison, and Monroe— understood the Establishment Clause to permit. And that understanding has “implications for . . . the distinction between ‘direct’ and ‘indirect’ funding” of “religious instruction” today. Chapman, 96 Notre Dame L. Rev. at 684.

We conclude that the PRWORA, PHSA, and CCDBGA religious restrictions do not resemble any of the historical hallmarks of a religious establishment and are inconsistent with longstanding federal practice. The Establishment Clause does not require such restrictions and would not be offended by their repeal. The precedents that once suggested otherwise, and for which these restrictions were designed, have since been fully discarded. See Kennedy, 142 S. Ct. at 2427; Nathan, 173 F.4th at 589–92.

III.

We next consider whether the statutory restrictions are permissible under the Free Exercise Clause. As noted above, when addressing a similar question about a religious restriction in the context of a loan-subsidization program provided to historically black colleges and universities, our 2019 opinion concluded that the government has “discretion not to fund certain religious uses of funds” in public-benefit programs. HBCU Religious Restrictions, 43 Op. O.L.C. at 192 (emphasis added). But because “the

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legal background against which we issued” our 2019 opinion “has dramatically changed,” this conclusion “merit[s] close reflection regarding whether our prior precedent should continue to bind the Executive Branch.” Reconsidering State Procedures for Appointment of Competent Counsel in Postconviction Review of Capital Sentences, 50 Op. O.L.C. __, at *5 (Feb. 18, 2026). Having given those legal developments close consideration , we now conclude that the government has less discretion to exclude faith-based funding uses from facially neutral grant programs than our 2019 opinion suggested.

A.

Part IV of our 2019 opinion rested on a distinction between religious status and religious use. See HBCU Religious Restrictions, 43 Op. O.L.C. at 196. It derived this distinction from two principal cases: Trinity Lutheran and Locke. Id.; see also id. at 206.

In Trinity Lutheran, the Supreme Court held that Missouri violated the Free Exercise Clause by “categorically disqualifying churches and other religious organizations from receiving grants under its playground resurfacing program.” 582 U.S. at 454. The Court explained that “[t]he Free Exercise Clause protects religious observers against unequal treatment and subjects to the strictest scrutiny laws that target the religious for special disabilities based on their religious status.” Id. at 458 (cleaned up). This principle extends to “denying a generally available benefit solely on account of religious identity,” as such a denial “imposes a penalty on the free exercise of religion.” Id. Thus, the Court concluded that “the exclusion of [a religious organization] from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution . . . , and cannot stand.” Id. at 467.

By contrast, the Supreme Court in Locke upheld a Washington state constitutional provision that disqualified students “pursuing a degree in devotional theology” from receiving scholarship funds. 540 U.S. at 715. The Court distinguished the scholarship restriction from “the Lukumi line of cases” (which concerned laws motivated by religious animus) because “the State’s disfavor of religion (if it can be called that) [was] of a far milder kind.” Id. at 720. As the Court saw it, “[t]he State ha[d] merely chosen not to fund a distinct category of instruction.” Id. at 721. Washington ’s “antiestablishment interests” “against using tax funds to support the

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ministry,” combined with its perceived lack of “hostility toward religion,” meant that “the denial of funding for vocational religious instruction alone [was not] inherently constitutionally suspect.” Id. at 722–25.

From these two cases, our 2019 opinion reasoned that the constitutionality of a religious funding restriction “turn[ed] on whether the restriction is based upon an institution’s religious status or whether it is based upon how the federal support would be used.” HBCU Religious Restrictions, 43 Op. O.L.C. at 196. From Trinity Lutheran, we concluded that “[r]estrictions based on religious status are presumptively unconstitutional.” Id. And from Locke, we concluded that “restrictions that limit government support for religious activities or uses may be permissible.” Id.

Applying that framework, we held in Part IV of our 2019 opinion that a restriction on providing program loans “to an institution in which a substantial portion of its functions is subsumed in a religious mission,” 20 U.S.C. § 1066c(c), was unconstitutional because it “discriminate[d] on the basis of an institution’s religious character,” HBCU Religious Restrictions , 43 Op. O.L.C. at 207. By contrast, we concluded that the restrictions concerning “religious worship,” “sectarian activity,” and “sectarian instruction” found in sections 1066c(c) and 1068e(1) were constitutional use-based restrictions.12 Id. at 208–09. Under Locke, we reasoned that “the government’s interest in avoiding support for religious activities extends to worship, prayer, and devotional religious education.” Id. at 209. “It is thus,” we said, “a lawful exercise of Congress’s discretion to define a federal aid program, rather than a penalty on the free exercise of religion.” Id. at 210. In sum, we concluded that these use- based restrictions “fit[] the mold of Locke rather than Trinity Lutheran” because they “restrict[ed] financing based on the religious use of the underlying project, rather than the religious character of the recipient.” Id. We applied the same reasoning to opine that other, similar provisions were also permissible use-based restrictions. See id. at 213–19.

12 We based our interpretation in part on the “[c]onstitutional concerns [that] would

arise if the restriction were construed to deny funding for capital-improvement projects for religious institutions more broadly.” HBCU Religious Restrictions, 43 Op. O.L.C. at 210 (citing Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988)).

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B.

We readily reaffirm our conclusion that “[r]estrictions based on religious status are presumptively unconstitutional” under Trinity Lutheran. Id. at 196. And indeed, that conclusion would dispose of the status-based PHSA restriction at 42 U.S.C. § 300x-65(i), which turns in part on whether the funds are provided “to a religious organization.” But as we explain below, intervening precedent has clarified that use-based religious restrictions on funding programs otherwise generally available to private organizations and individuals are likewise presumptively unconstitutional.

Less than a year after our 2019 opinion, the Supreme Court issued its decision in Espinoza. See 140 S. Ct. at 2261; see also HBCU Religious Restrictions, 43 Op. O.L.C. at 197 (acknowledging that the grant of certiorari in Espinoza signaled that “this area of law is still being developed”). Espinoza concerned Montana’s “‘no-aid’ provision,” which “barr[ed] government aid to sectarian schools.” 140 S. Ct. at 2252. Over Montana’s objection that “the no-aid provision applies not because of the religious character of the recipients, but because of how the funds would be used,” the Court held that Trinity Lutheran squarely controlled because the Montana Supreme Court’s interpretation “turn[ed] expressly on religious status and not religious use.” Id. at 2255–56. Although the Court “questioned whether there is a meaningful distinction between discrimination based on use or conduct and that based on status,” it ultimately determined that it “need not examine it here.” Id. at 2257.

The Court also distinguished Montana’s no-aid provision from Locke “in two critical ways.” Id. First, it noted that Locke concerned “‘a distinct category of instruction’: the ‘essentially religious endeavor’ of training a minister ‘to lead a congregation.’” Id. (quoting Locke, 540 U.S. at 721). Second, and relatedly, “Locke invoked a ‘historic and substantial’ state interest in not funding the training of clergy.” Id. (quoting Locke, 540 U.S. at 725). These “narrow” aspects of Locke, the Court explained, could not justify “Montana’s decision to disqualify religious schools from government aid” generally. Id. at 2257–58.

Next came Carson. If Espinoza reflected developing law, Carson charted the new trajectory of free-exercise jurisprudence. There, the Supreme Court considered a challenge to Maine’s tuition-assistance program that excluded religious schools. 142 S. Ct. at 1993–94. The Court started from

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the “unremarkable” proposition—expounded in Trinity Lutheran and Espinoza—that “a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” Id. at 1996 (quoting Trinity Lutheran, 582 U.S. at 462). Thus, although “‘[a] State need not subsidize private education,’ . . . ‘once a State decides to do so, it cannot disqualify some private schools solely because they are religious.’” Id. at 1997 (quoting Espinoza, 140 S. Ct. at 2261). Applying these principles, the Court held that Maine’s religious exclusion violated the Free Exercise Clause. Id. at 1997–98.

Maine attempted to distinguish Trinity Lutheran and Espinoza in two ways, both of which the Court rejected. At the outset, Maine sought to argue that the “benefit” it offered was simply “limited to private secular education.” Id. at 1999 (emphasis added). The Supreme Court rejected this attempt to simply redefine the religious restriction because “the definition of a particular program can always be manipulated to subsume the challenged condition, and to allow States to recast a condition on funding in this manner would be to see the First Amendment reduced to a simple semantic exercise.” Id. (cleaned up). That is, if the government could simply “reconceptualiz[e]” a public benefit as limited to secular applications, it would render the Free Exercise Clause “essentially meaningless .” Id. at 2000. Either way, such limitation is a form of “prohibited discrimination.” Id.

Next, Maine argued that it was not excluding schools based on their religious status; instead, it merely prohibited religious uses of state funding —in other words, the same line drawn by our 2019 opinion. Id. at 2001; see also HBCU Religious Restrictions, 43 Op. O.L.C. at 196. The Supreme Court rejected that distinction, holding that “any status-use distinction lacks a meaningful application not only in theory, but in practice as well.” Carson, 142 S. Ct. at 2001. Indeed, “[a]ny attempt to give effect to such a distinction . . . would . . . raise serious concerns about state entanglement with religion and denominational favoritism.” Id. In short, “the prohibition on status-based discrimination under the Free Exercise Clause” was not “permission to engage in use-based discrimination .” Id. “Trinity Lutheran and Espinoza,” the Court clarified, “never suggested that use-based discrimination is any less offensive to the Free Exercise Clause” than status-based discrimination. Id.

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After Carson, the Supreme Court next considered a Wisconsin law that attempted to limit a tax exemption to only those religious institutions that engage in “activities that express and inculcate religious doctrine: worship , proselytization, religious education.” Catholic Charities, 145 S. Ct. at 1593 (citation omitted). The Court unanimously labeled that restriction the “paradigmatic form of denominational discrimination” because determining what counts as worship, proselytization, or religious education reflects “fundamentally theological choices driven by the content of different religious doctrines.” Id. at 1591, 1593. Thus, “[a] statute that excludes religious organizations from an accommodation on such grounds facially favors some denominations over others.” Id. at 1593.

From this series of cases and their clarification of Trinity Lutheran, we draw three free-exercise principles, which together establish an updated framework for analyzing religious restrictions:

• First, strict scrutiny applies whenever a generally available benefit is denied or burdened on account of religion, whether the trigger is the recipient’s religious status, Trinity Lutheran, 582 U.S. at 467, or its “anticipated religious use” of the benefit, Carson, 142 S. Ct. at 2002.

• Second, a funding condition that requires a religious recipient to segregate or suppress religious exercise as the price of its participation is such a burden, and the government may not avoid that conclusion by “reconceptualiz[ing]” the restriction as part of “the definition of a particular program.” Id. at 1999–2000. Locke survives , if at all, only with respect to “vocational religious degrees.” Id. at 2002; see also Hall v. Fleming, 175 F.4th 510, 516 (4th Cir. 2026) (Richardson, J., concurring) (urging the Supreme Court to overturn Locke because it “was wrongly decided” and represents “a moth-eaten shell of its former self”).

• Third, line-drawing among practices that involve “worship,” “instruction ,” and “proselytization” is itself constitutionally suspect because it requires the government to make theological judgments and risks denominational favoritism, thus collapsing back into status-based discrimination requiring strict scrutiny. See Catholic Charities, 145 S. Ct. at 1593; Carson, 142 S. Ct. at 2001.

Any aspect of our 2019 opinion inconsistent with this updated framework is no longer the view of our Office, or of the Executive Branch.

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C.

Applying this updated framework, the PRWORA, PHSA, and CCDBGA restrictions are presumptively unconstitutional and trigger strict scrutiny because they discriminate based on religious status or anticipated religious use.13 To see why the imposition of special burdens constitutes discrimination based on religious status or use, briefly consider the nature of the federal benefit programs covered by the statutory restrictions. PRWORA, the PHSA, and the CCDBGA involve a vast array of social services and programs, many of which the federal government funds directly through the states to local providers. TANF-funded services, covered by the PRWORA restriction, include child-care assistance, pre-kindergarten, jobpreparation classes and vocational training, work subsidies, familyformation projects, youth-mentoring programs, abstinence and sex- education programs, homeless shelters, and emergency food programs like soup kitchens and food banks. Subject to the PHSA, SAMHSA distributes competitive grants for “mental health services, substance use treatment, and substance use prevention activities” directly to non-profits and local service providers. Ada S. Cornell, Cong. Rsch. Serv., R48976, Connecting Constituent Organizations to Behavioral Health Funding at 5 (June 9, 2026), https://perma.cc/VSM6-9J4E. Recent grants span a wide swath of issues, including adult suicide prevention; infant and earlychildhood mental health; preventing youth overdose; and providing treatment , recovery, and workforce support. Id. at 6–7. And the CCDBGA funds child care for low-income families by providing grants to child-care providers or vouchers that parents may use to secure care. See Karen E.

13 PRWORA, the PHSA, and the CCDBGA impose quintessential use-based religious

restrictions. See 42 U.S.C. §§ 604a(j), 290kk-2, 9858k(a). We previously concluded that nearly identical limitations were use-based restrictions. See HBCU Religious Restrictions, 43 Op. O.L.C. at 209 (“religious worship”); id. at 213 (“sectarian instruction”); see also id. at 210 (determining that those restrictions applied “based on the religious use of the underlying project”). Although we did not specifically consider a bar on “proselytization” at the time, we now conclude that such a restriction also discriminates based on “anticipated religious use.” Carson, 142 S. Ct. at 2002. As noted above, the PHSA’s restriction on funds provided “to a religious organization” that provides a “substance abuse program” also imposes a status-based restriction, because a secular organization that incorporated religious instruction would not be covered by subsection (i) at all. 42 U.S.C. § 300x-65(i).

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Lynch, Cong. Rsch. Serv., R47312, The Child Care and Development Block Grant: In Brief at 3–4 (Dec. 3, 2024), https://perma.cc/94XR-JV94.

Although federal funding for these programs is generally available to private providers, religious providers who otherwise meet program requirements must clear an additional hurdle—the statutory religious restrictions. These restrictions pose free-exercise problems under the second and third principles of our framework.

Under the first and second prongs of our analysis, the restrictions treat religious providers worse than secular counterparts by singling them out for distinct burdens. Religious providers must artificially segregate their religious practices—worship, instruction, and proselytization—from “permissible ” funded activities to participate in generally available federal programs. See 42 U.S.C. §§ 604a(j), 290kk-2, 9858c(c)(2)(A)(i)(I); 9858k(a). So, for example, a secular organization is free to teach a sex-education curriculum inculcating its values and beliefs on human sexuality. But a religious organization implementing the same program could not teach its religious perspectives about human dignity and chastity. A secular food bank may post advertisements on its walls or announce messages before meals on countless topics, while a church soup kitchen cannot hold a communal prayer before serving a meal. The CCDBGA restriction on religiously based employment and admissions decisions for certain child-care providers similarly burdens religious practice only. Section 9858l(a)(4) is not a general anti-discrimination provision; it targets only decisions made “because of [] religion.”

HHS regulations apply an even higher burden in many situations and exacerbate the free-exercise concern. Recall that HHS regulations and guidelines force religious recipients to provide religious activities “separately , in time or location,” from federally funded services, 45 C.F.R. § 87.3(d), and to make that distinction “completely clear to the consumer ,” HHS, Separation of Explicitly Religious Activities at *1. Even assuming religious providers could completely divest funded services from their religious practices, this imposes significant cost allocation and differentiation requirements that religious providers alone must bear. See id. For many religious organizations, this may be an impossible task. Regardless, recipients of federal funds must not be “put to the choice” between participation in a generally available program and forgoing, segregating, or bifurcating their religious activities. Trinity Lutheran, 582 U.S. at 462.

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Nor can Congress skirt the free-exercise problem by recharacterizing these benefit programs as secular. Carson rejected such an attempt to reconceptualize a generally available benefit program—vouchers for private schools—in exclusively secular terms, as the “rough equivalent” of a “public school education.” Carson, 142 S. Ct. at 1998; see id. at 2000. PRWORA, the PHSA, and the CCDBGA cover classic public- benefit programs that fund child care, homeless shelters, substance-abuse treatment and prevention, food banks, and more. Qualified religious providers are equally capable of providing these services—and have a long history of doing so. Congress could not exclude religious providers by recharacterizing the funded services as non-religious homeless shelters or food banks. Nor can it do so by requiring religious providers to divorce their religious nature from their provision of these services. Once Congress offers a generally available public benefit, it cannot condition participation on relinquishment of religious identity or practices. See id.14 The statutory and regulatory religious restrictions violate this principle and trigger strict scrutiny.

Under the third prong of our framework, the restrictions demarcate permissible from impermissible activities based on whether they involve “sectarian worship, instruction, or proselytization.” 42 U.S.C. §§ 604a(j), 290kk-2, 300x-65(i); see also id. § 9858k(a) (similar). That line-drawing necessarily embroils the government in religious determinations about what constitutes worship, instruction, or proselytization. And “[a]ny attempt to give effect to” the restrictions’ prohibition on “engaging in explicitly religious activities” would “raise serious concerns” under the Religion Clauses about “denominational favoritism.” Carson, 142 S. Ct. at 2001; see also HHS Memorandum at 5.

The Catholic Charities case presented a mirror image of the PRWORA, PHSA, and CCDBGA restrictions, and concerns that the Court articulated

14 To be sure, the government retains flexibility to define the scope of a funded activity—

for example, by funding a STEM scholarship—so long as it treats religious and non- religious providers alike. Such a scholarship program could permissibly exclude both snow-skiing classes and scripture-study classes unrelated to STEM. But the government would be obligated to allow religious providers to integrate their faith into STEM instruction —such as by discussing the relationship between faith and science or the theological basis for mathematics. In other words, defining the scope of a funded program involving subjects that are typically viewed as secular should not preclude religious organizations from participating in a manner consistent with their religious perspectives.

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there about denominational discrimination apply with equal force here. See 145 S. Ct. at 1591, 1593. The terms “sectarian worship, instruction, [and] proselytization” are not defined by statute, and their meaning can differ widely between faiths. Who decides when an activity crosses the line into “worship,” for example? Is the provision of charitable services to the poor and needy—a primary goal of Charitable Choice, see Friedman, 5 Geo. J. on Fighting Poverty at 113—a secular activity or a form of religious worship?15 The same question could be asked of instruction and proselytization. And different religions themselves may have different or nuanced definitions for each of these activities. See, e.g., Catholic Charities , 145 S. Ct. at 1589 (noting that “Catholic teachings distinguish between ‘evangelization,’ which involves sharing one’s faith, and ‘proselytization ,’ which seeks to influence or coerce others into accepting one’s religious views” (cleaned up)).

Attempting to draw a one-size-fits-all line would create “a denominational preference by explicitly differentiating between religions based on theological practices.” Id. at 1592. Just as “an exemption that requires proselytization . . . establishes a preference for certain religions based on the commands of their religious doctrine,” the restrictions’ complete bar on similar religious activities “imposes a denominational preference by differentiating between religions based on theological choices.” Id. Another upshot of these restrictions is to impermissibly prefer secular reasons for helping the needy to religious ones. See Kelsey Curtis, Note, The Partiality of Neutrality, 41 Harv. J.L. & Pub. Pol’y 935, 940–42 (2018). Thus, like the provision at issue in Catholic Charities, we conclude that the PRWORA, PHSA, and CCDBGA restrictions trigger strict scrutiny on this basis too. See Catholic Charities, 145 S. Ct. at 1593; Carson, 142 S. Ct. at 1997.

Having concluded that strict scrutiny applies to the religious restrictions at issue here, we now apply that stringent test. “To satisfy strict scrutiny, government action must advance interests of the highest order and must be narrowly tailored in pursuit of those interests.” Carson, 142

15 See Brief of Wisconsin Catholic Conference as Amicus Curiae in Support of Peti-

tioners at 3–4, Catholic Charities, 145 S. Ct. 1583 (No. 24-154) (arguing that charity is “inherently religious” and reflects “[t]he duty to spread Christian love”); James 1:27 (King James) (“Pure religion and undefiled before God and the Father is this, To visit the fatherless and widows in their affliction.”).

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S. Ct. at 1997 (cleaned up). “A law that targets religious conduct for distinctive treatment will survive strict scrutiny only in rare cases.” Id. (cleaned up). The PRWORA, PHSA, and CCDBGA restrictions do not fit the bill. The only government interest put forward in their defense was the need to comply with the Establishment Clause. See Part I.A; see also Friedman, 5 Geo. J. on Fighting Poverty at 113–14. But as we explained above, the Establishment Clause—properly understood by reference to historical hallmarks—does not require these restrictions. See Part II.C. And Trinity Lutheran, Espinoza, and Carson each held unequivocally that “an interest in separating church and state more fiercely than the Federal Constitution cannot qualify as compelling in the face of the infringement of free exercise.” Carson, 142 S. Ct. at 1998 (cleaned up); see also Trinity Lutheran, 582 U.S. at 466; Espinoza, 140 S. Ct. at 2260. Because the PRWORA, PHSA, and CCDBGA restrictions “operate[] to identify and exclude otherwise eligible [entities] on the basis of their religious exercise ” through special burdens imposed without a compelling justification, they fail strict scrutiny and violate the Free Exercise Clause. Id. at 2002.

D.

We have identified three possible counterarguments, none of which alters our conclusion. First, what is sometimes called the Spending Clause allows Congress to generally attach conditions on federal funds. Second, Carson concerned indirect, rather than direct, funding. And third, restrictions based on religious “instruction” are still permissible under Locke. We address each in turn.

1.

Some might argue that these restrictions are constitutional on the premise that “Congress may attach conditions on the receipt of federal funds” under the Spending Clause “and has repeatedly employed the power ‘to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.’” South Dakota v. Dole, 483 U.S. 203, 206 (1987) (citation omitted); see also Landor v. La. Dep’t of Corr. & Pub. Safety, 146 S. Ct. 1931, 1938 (2026). The argument would be that the PRWORA and PHSA restrictions are merely examples of such conditions. It might also be said

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that Congress has defined a secular benefit program and lawfully excluded religious exercise from the scope of that program, and therefore that the religious restrictions are “a lawful exercise of Congress’s discretion to define a federal aid program, rather than a penalty on the free exercise of religion.” HBCU Religious Restrictions, 43 Op. O.L.C. at 210.

But the Supreme Court in Carson rejected much the same argument. There, Maine similarly defended the religious restrictions in its school funding program on the ground that “Maine offers a benefit limited to private secular education.” 142 S. Ct. at 1999. The Supreme Court had none of it. “[T]he definition of a particular program,” the Court explained, “can always be manipulated to subsume the challenged condition,” so “to allow States to recast a condition on funding in this manner would be to see the First Amendment reduced to a simple semantic exercise.” Id. (cleaned up).

Here, as in Carson, there is no basis for defining the particular programs to be “secular,” apart from an apparent desire to extirpate religious exercise from them. The PRWORA, PHSA, and CCDBGA restrictions in no way represent “a mere definition of [the government] program[s].” Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 547 (2001); see Carson, 142 S. Ct. at 1998 (rejecting a similar attempt to recast a restriction and noting that “the statute does not say anything like that”). Religious organizations that receive federal funds are often on the front lines of administering welfare and substance-abuse programs, and the religious nature of those organizations is not incompatible with those programs. See Friedman, 5 Geo. J. on Fighting Poverty at 113 (noting that the “central objective of Charitable Choice is to involve faith-based providers in anti-poverty efforts”). Whatever may be true of funding conditions in other constitutional contexts, the Supreme Court has now clarified that the Free Exercise Clause’s express terms prohibit just that sort of discrimination against the “exercise” of religion.

2.

Some might argue that Carson and Espinoza have no bearing on the restrictions here because those cases concerned indirect funding—“a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients.” Carson, 142 S. Ct. at 1997. On this view, the principles announced in

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Espinoza and Carson govern only when public funds reach a religious institution through the independent choices of private beneficiaries, and the PRWORA, PHSA, and CCDBGA restrictions—which reach only “funds provided directly,” 42 U.S.C. § 604a(j) (emphasis added); see also id. §§ 290kk-2, 9858k(a)—are left untouched.16 But the free-exercise inquiry does not turn on the direct-indirect distinction any more than it did on the status-use distinction. The government “violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits,” and the Clause “protects against ‘indirect coercion or penalties on the free exercise of religion , not just outright prohibitions.’” Carson, 142 S. Ct. at 1996 (quoting Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 450 (1988)). The mechanism by which the benefit is delivered is constitutionally irrelevant. True, Carson and Espinoza arguably concerned indirect funding that flowed through parents’ independent choices, even though payments were made directly to the religious school. See Carson, 142 S. Ct. at 1997; Espinoza, 140 S. Ct. at 2251. But these cases did not assign dispositive weight to that fact. And Trinity Lutheran settles the matter: The playground-resurfacing grant there would have passed directly from the Missouri department to the church without the involvement of any other private independent choice or intermediary, yet the Court still applied strict scrutiny. See 582 U.S. at 462. In rejecting the status-use distinction, Carson did not revive the direct-indirect distinction’s relevance to the Free Exercise Clause. Direct funding is not an exception to the Free Exercise Clause.

Rather, the argument must be that the direct-indirect distinction is still relevant for Establishment Clause purposes, which was the context in which that distinction arose. See Part II.A.2.c; Zelman, 536 U.S. at 649. If a direct-funding program would violate the Establishment Clause where an indirect one would not, then a direct-funding restriction might supply the compelling governmental interest that strict scrutiny demands. See, e.g., Bowen, 487 U.S. at 613 (describing a supposed “proscription against [directly] ‘funding a specifically religious activity in an otherwise substantially secular setting’” (alteration accepted) (quoting Hunt, 413 U.S. at 743)); see also Widmar, 454 U.S. at 271 (recognizing that an interest in

16 The CCDBGA restriction on religious employment and admissions decisions is not

limited to direct funding, and its implementing regulations apply it to both direct and indirect aid. 42 U.S.C. § 9858l(a)(4); 45 C.F.R. §§ 98.48–98.49.

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complying with the Establishment Clause “may be characterized as compelling ”).

The problem is that the direct-indirect distinction is fruit of the poisoned Lemon tree, which was disavowed in Kennedy. See Part II.A.3. The Court found that distinction of further probative value only in assessing whether it should attribute to the government or to the citizen the “incidental advancement of a religious mission, or the perceived endorsement of a religious message.” Zelman, 536 U.S. at 652. But as described above, Lemon—with “its endorsement test offshoot”—has been fully repudiated. Kennedy, 142 S. Ct. at 2427. Little wonder, then, that the Supreme Court assigned the direct-indirect distinction no continuing significance in Trinity Lutheran, Espinoza, or Carson. In Espinoza, the Court stated that “[a]ny Establishment Clause objection to the scholarship program here is particularly unavailing because the government support makes its way to religious schools only as a result of Montanans independently choosing to spend their scholarships at such schools.” 140 S. Ct. at 2254 (emphasis added). This suggests that the Establishment Clause challenge would have been “unavailing” even without it. Id.

The Establishment Clause was originally, and is now again, properly understood by reference to the “hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.” Kennedy, 142 S. Ct. at 2429 & n.5. This historically grounded understanding places no dispositive weight on the direct or indirect nature of a funding program. See Part II.B. And contra Bowen (which, it bears repeating, flowed fully from Lemon), there is no talismanic “proscription against [directly] ‘funding a specifically religious activity in an otherwise substantially secular setting.’” 487 U.S. at 613 (alteration accepted) (quoting Hunt, 413 U.S. at 743). There is only the proscription against laws “respecting an establishment of religion,” U.S. Const. amend. I, which is evaluated using the historical hallmarks identified above, see Part II.B. The direct-funding restrictions in PRWORA, the PHSA, and the CCDBGA cure no Establishment Clause violation and therefore cannot provide a compelling governmental interest. See Carson, 142 S. Ct. at 1998.17

17 Even if the PRWORA, PHSA, and CCDBGA restrictions potentially mapped onto

specific historical hallmarks, their broad use-based restrictions would not be narrowly

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3.

A final counterargument might rest on the continuing significance, if any, of Locke. The religious restrictions applicable to HHS-funded programs each include a bar on using funds for “sectarian . . . instruction.” 42 U.S.C. §§ 604a(j), 290kk-2, 9858k(a). And in our 2019 opinion, we read Locke broadly to “reflect[] that the government’s interest in avoiding support for religious activities extends to . . . devotional religious education .” HBCU Religious Restrictions, 43 Op. O.L.C. at 209. At a high level of generality, Locke concerned the government funding of religious education . See 540 U.S. at 721. And in Carson, the Supreme Court declined to overrule Locke. See 142 S. Ct. at 2002. One could argue that, at least as applied to the bar on “sectarian instruction,” Locke remains good law, and so this specific aspect of the PRWORA, PHSA, and CCDBGA restrictions does not violate the First Amendment.

But in Carson, the Supreme Court made clear that “Locke’s reasoning expressly turned on what it identified as the ‘historic and substantial state interest’ against using ‘taxpayer funds to support church leaders.’” 142 S. Ct. at 2002 (quoting Locke, 540 U.S. at 722, 725). It emphasized that in Locke, “[f]unds could be and were used for theology courses”—it was “only pursuing a ‘vocational religious’ degree [that] was excluded.” Id. (quoting Locke, 540 U.S. at 725). Because “prepar[ing] for the ministry” is entirely distinct from general religious instruction, Trinity Lutheran, 582 U.S. at 464, Carson emphasized that “Locke cannot be read beyond its narrow focus on vocational religious degrees,” 142 S. Ct. at 2002. Indeed, reading Locke to cover religious instruction generally would make little sense because that would have required the opposite outcome in both Espinoza and Carson—each of which concerned public funding for religious schools. See Carson, 142 S. Ct. at 1997; Espinoza, 140 S. Ct. at 2251.

In Locke’s final paragraph, the Supreme Court remarked that “[i]f any room exists between the two Religion Clauses, it must be here.” 540 U.S. at 725. But after Espinoza and Carson, we can confidently say that this “play in the joints” cannot be broader than Locke’s “narrow focus on

tailored because they are both overinclusive and underinclusive with respect to any relevant historical comparator. See Catholic Charities, 145 S. Ct. at 1594.

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vocational religious degrees.” Carson, 142 S. Ct. at 2002. 18 The PRWORA, PHSA, and CCDBGA prohibitions against using funds for “sectarian instruction” sweep far wider and therefore cannot be justified by Locke.

E.

Although we conclude that the PRWORA, PHSA, and CCDBGA restrictions violate the Free Exercise Clause, we further conclude that those restrictions are severable from their statutory schemes. See Constitutionality of Race-Based Department of Education Programs, 49 Op. O.L.C. __, at *13–16 (Dec. 2, 2025) (“Race-Based Education Programs”) (describing severability doctrine). The “usual rule” that “unconstitutional statutory provisions ‘may be disregarded while full effect will be given to such as are not repugnant to the [C]onstitution of the United States’” applies here with full force. Id. at *14 (alteration in original) (quoting Bank of Hamilton v. Dudley’s Lessee, 27 U.S. (2 Pet.) 492, 526 (1829) (Marshall, C.J., for the Court)).

As a matter of statutory interpretation, severing the unconstitutional provisions “would not impair the structure or functioning of any other provision of the statute.” Id. at *15 (citation omitted). No other statutory provision in PRWORA, the PHSA, or the CCDBGA depends on the religious restrictions. Moreover, even after severing the religious restrictions , “the statute[s] would . . . ‘function in a manner consistent with the intent of Congress.’” Id. at *14 (quoting Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 685 (1987)). After all, Congress made the purpose of Charitable Choice clear: “to allow religious organizations to be program participants on the same basis as any other nonprofit private provider,”

18 Although Trinity Lutheran and Espinoza both alluded to the “play in the joints”

principle, see 582 U.S. at 458; 140 S. Ct. at 2254, it is significant that Carson makes no mention of it, see 142 S. Ct. at 1996–98; see also id. at 2002 (Breyer, J., dissenting) (“The majority . . . fails to recognize the ‘play in the joints’ between the two Clauses.” (citation omitted)). Because the “play in the joints” principle fits hand-in-glove with Lemon, see Part II.A.2.a, and based on the Supreme Court’s severe narrowing of Locke, we harbor substantial doubts about the continuing viability of that principle and the line of precedent applying it, see Hall, 175 F.4th at 518 n.3 (Richardson, J., concurring) (“[T]he Supreme Court has rejected the notion of ‘play in the joints’ between the Free Exercise and Establishment Clauses.”).

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provided that “the programs are implemented consistent with the Establishment Clause and Free Exercise Clause.” 42 U.S.C. § 290kk-1(b), (c)(1); see also id. § 604a(b)–(c). And nothing in the CCDBGA indicates that its religious restrictions were so intertwined with the rest of the statutory scheme that severing them would render the program “alien to the goals Congress set out to accomplish.” Race-Based Education Programs at *22. Because the restrictions are not required by the Establishment Clause, and their inclusion violates the Free Exercise Clause, severing the unconstitutional restrictions is aligned with congressional intent as expressed by the statutory text. See Alaska Airlines, 480 U.S. at 685.

IV.

The religious restrictions in PRWORA, the PHSA, and the CCDBGA are not required by the Establishment Clause, as interpreted by reference to the historical hallmarks of a religious establishment. These restrictions also trigger strict scrutiny under the Free Exercise Clause. Because such restrictions are not compelled by the Establishment Clause, they lack any compelling governmental interest that would allow them to survive that scrutiny. The statutory religious restrictions are therefore unconstitutional under the First Amendment. Should HHS establish a policy not to enforce those unconstitutional statutory provisions and the Department’s attendant regulations, it should report that decision to Congress within 30 days of establishing the policy. See 28 U.S.C. § 530D(a)(1)(A)(i), (b)(1), (e); Race-Based Education Programs at *48 n.20.

T. ELLIOT GAISER Assistant Attorney General Office of Legal Counsel

JOSHUA J. CRADDOCK Deputy Assistant Attorney General Office of Legal Counsel