JUNE 30 • 2022 | 5
religious school or because the
funds will be used for religious
purposes? Those permeable
categories open the door
for government to rebrand
discrimination as needed to
avoid constitutional obstacles.
What will be the likely
impact of the decision? By
its terms, it applies to cases
where government is provid-
ing funding to private institu-
tions for secular reasons and
doing so on neutral terms.
Notwithstanding concerns
expressed by Justice Stephen
Breyer, it does not allow
government to simply fund
religious institutions. And it
does not allow government to
fund religion unless it is part
of a broad funding program
available to all comparable
institutions — religious and
non-religious alike.
But that doesn’t mean its
impact will be. To see the
likely impact on existing
funding programs, consider
a 2018 decision issued by the
New Jersey Supreme Court.
New Jersey had announced
a historic preservation grant
program and awarded funds
to, among other institutions,
some churches that had his-
toric value. The New Jersey
Supreme Court concluded,
however, that doing so vio-
lated the state’s rule against
funding religious institutions.
In the court’s view, these
churches could be excluded
because some of the funding
would be used for a religious
purpose — for example, to
repair church sanctuaries.
Going forward, this sort
of analysis is no longer good
law. As long as the funding
program advances a secular
purpose — protecting histor-
ic buildings — the fact that
some of the funds will inci-
dentally be used for religious
purposes will not authorize
religious discrimination.
This ruling provides a
strong incentive for religious
communities to work along-
side other groups to create
new funding programs that
advance important public pol-
icies. With all forms of reli-
gious exclusions now consti-
tutionally prohibited, religious
communities can rest assured
new funding programs will
not provide for the general
public while excluding them.
The Orthodox Union has
already expressed its commit-
ment to “proactively pressing
for policymakers … to ensure
that any state and local edu-
cation funding programs are
fully available and accessible
to nonpublic schools and
their families as the Supreme
Court has clearly mandated.
”
However, maybe the most
important feature of yester-
day’s decision isn’t the impact
on funding.
The decision also speaks to
core constitutional principles
of neutrality and equality. It
states unequivocally that reli-
gious citizens need not worry
that the price of their religious
commitments will be exclu-
sion from funding programs
geared toward solving secular
policy interests that impact
everyone.
All told, when it comes to
both the principles and prag-
matics of funding, yesterday’s
decision ensures that religious
institutions will no longer be
left behind.
Michael A. Helfand is the Brenden
Mann Foundation Chair in Law and
Religion and Vice Dean for Faculty
and Research at Pepperdine Caruso
School of Law and Senior Fellow
at the Shalom Hartman Institute of
North America.
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