Legal memo says faith-based groups need not face extra grant restrictions

The Justice Department’s Office of Legal Counsel issued a formal opinion stating that the Constitution does not obligate religious charities to separate prayer or other overtly religious acts from taxpayer-funded programs. The request originated from the Department of Health and Human Services, overseen by Secretary Robert F. Kennedy Jr., which sought clarification on whether faith-based groups face stricter grant conditions than secular nonprofits.

Citing the Supreme Court’s 2022 rulings in Kennedy v. Bremerton School District and Carson v. Makin, the memo rejects the outdated Lemon test and adopts an originalist “historical practices” approach. It holds that requiring religious providers to isolate their worship imposes an unconstitutional burden under both the establishment and free-exercise clauses. The opinion further notes that such restrictions hinder the delivery of aid by the many faith-run food pantries, shelters, and housing programs that serve vulnerable populations. Authors T. Elliot Gaiser and Joshua Craddock emphasize that removing these hurdles would benefit both religious volunteers and the people they assist.