New Report: Uncovering Religious Discrimination in State Programs
New York, NY – The First Amendment prohibits the exclusion of religious schools and organizations from public programs open to other private institutions. Yet, despite recent Supreme Court decisions making this clear, a new Manhattan Institute report from senior fellow Nicole Stelle Garnett and legal fellow Tim Rosenberger uncovers widespread religious discrimination in state programs – not just in educational settings but across an array of sectors as varied as gas rebates and historic preservation. Their report identifies numerous constitutionally problematic restrictions on religious organizations and offers concrete steps to undo them.
Garnett and Rosenberger begin by explaining how three cases—Trinity Lutheran Church v. Comer (2017), Espinoza v. Montana Department of Revenue (2020), and Carson v. Makin (2022)—clarify that when the government includes private entities in public programs, it cannot exclude religious organizations or compel them to secularize in order to participate. The report then highlights widespread examples of precisely these kinds of discriminatory restrictions across different states’ programs, in several key public policy areas, including: K-12 education programs, Pre-K programs, higher education programs, healthcare and social services, public finance and community development, charitable giving, and historic preservation.
This report collects and examines these unconstitutional programs at the state level, exposing violations of the First Amendment's nondiscrimination principle. It concludes with three recommended avenues for reform:
Legislative Change: States can adopt legislation which either clarifies that all programs must comply with the First Amendment or excises specific discriminatory restrictions.
Nonenforcement and Attorneys General Opinions: Especially in states where the legislature is unwilling to enact required reforms, state executives can refuse to enforce existing discriminatory restrictions, and AGs can issue opinions explaining the unconstitutionality of these restrictions.
Litigation: Religious organizations affected by unconstitutional program restrictions can challenge them in court.
