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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