Based on old First Amendment court cases, federal law had told religious groups blessing the food could cost them their grants — unless such “explicitly religious activities” (like prayer) were offered “separately, in time or location,” from the taxpayer-funded service. Only religious charities had this headache; secular groups could promote their nonreligious views without consulting the Code of Federal Regulations.
That is why President Donald Trump‘s Department of Health and Human Services, under the leadership of Secretary Robert F. Kennedy Jr., asked us in the Justice Department’s Office of Legal Counsel if the Constitution really required religious groups to jump through hoops secular charities did not. Our answer, recently published, is an emphatic “no.”
Since before our Constitution’s ratification, faith-based associations and the civil government have partnered to provide for the needy. A 20-year-old Benjamin Franklin founded the “Junto Club” in 1727 — from which sprang the first lending library, first volunteer fire department, and the nation’s first charity hospital — on a donated plot of land, under the care of a Quaker matron, and funded by legislation that matched private donations with public grants. And in the Northwest Ordinance, the First Congress — the same body that proposed the First Amendment — 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.”
Despite these and other historical examples, the Supreme Court in the mid-20th century began interpreting the First Amendment’s establishment and free exercise clauses as erecting a strict “wall of separation” between civil society and faith-based charity. Such precedent culminated in the so-called Lemon test from Lemon v. Kurtzman (1971), which called on courts and policymakers to juggle a multifactor test to avoid “excessive government entanglement with religion” — a curiously eye-of-the-beholder-based standard. Although Lemon drew fierce criticism and increasing skepticism from justices over the decades, its effects lingered. The late Justice Antonin Scalia compared Lemon to a “ghoul in a late-night horror movie” that “sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”
Elected leaders in Congress and the White House sought to follow the best of the American tradition of involving faith-based providers in anti-poverty efforts. But to mitigate the legal risk of an establishment clause violation as defined by the Lemon test, they also attached strings to charitable grant programs that included religious providers. Those restrictions often relied on a purported distinction between religious status and religious use: Governments could not prohibit an organization from receiving taxpayer dollars just because that organization was religious (status), but could or even had to prohibit an organization from spending funds on religious activities (use). That approach often forced the government to decide what counts as a religious act — an improper task for government that differs across faiths and risks favoring some religions over others.
Thus a religious organization could teach a federally funded course on healthy marriage and responsible fatherhood, but could not incorporate its religious perspective. If it chose to separately offer a course containing religious content, it was subject to differentiation and cost-allocation requirements. While more than half of all U.S. food pantries and soup kitchens are run by faith-based organizations, as well as roughly one-quarter of transitional housing programs and emergency shelters, many people of faith have been deterred from participating in federally funded programs because of such onerous regulations.
In 2022, the Supreme Court drove a stake through Lemon’s heart. In Kennedy v. Bremerton School District (2022), the court rejected Lemon as an “ahistorical approach to the Establishment Clause” that the court “long ago abandoned.” In place of Lemon, the court now relies on “‘historical practices and understandings’” from when the First Amendment was ratified. And in Carson v. Makin (2022), a case about Maine’s exclusion of religious schools from its voucher program, the court further explained that the free exercise clause prohibits governments from denying benefits to religious organizations on account of “anticipated religious use.”
Under this originalist approach, we advised HHS that the establishment clause does not require religious restrictions on charitable programs. The government may engage religious institutions to deliver civil services as it has done historically; that does not impermissibly establish a religion and it does not coerce anyone. Qualifying organizations are free to participate (or not) in federal programs. And by statute, the government must give beneficiaries who object to a provider’s religious character notice of an accessible alternative.
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Not only are such religious restrictions unnecessary under the establishment clause, but presumptively unconstitutional under the free exercise clause. Funding conditions that require a religious recipient to segregate its religious exercise as the price of participation single out religious providers for unique burdens. As the court unanimously explained in Catholic Charities v. Wisconsin (2025), government may not prefer secular reasons for helping the needy to religious ones.
Laws that require religious anti-poverty groups to clear higher hurdles than secular groups not only conflict with the Constitution — they make it harder to help those in need. Removing these unconstitutional restrictions helps both people of faith seeking to live out their convictions, and the vulnerable people who benefit from social services.
T. Elliot Gaiser is the 27th assistant attorney general for the Office of Legal Counsel. Joshua Craddock is a deputy in the office.