A series of recent Supreme Court decisions, culminating last year in Carson v. Makin, emphasized that government-sponsored religious discrimination, “is odious to our Constitution.” These decisions articulate the Constitutional right of religious organizations to participate fully in public programs that enlist the cooperation of private individuals and organizations to advance the common good. The principle distilled in them—we will call it the “Carson principle,” for short—is as follows: The government may neither exclude organizations from public programs because of their religious character nor limit their participation to secular activities.

As Bruno Manno observed in a recent Law & Liberty essay, Carson leaves important questions unanswered, including, for example, the constitutionality of “regulatory strings” imposed on religious organizations as a condition of participating in public programs. Unfortunately, however, many public officials persist in stumbling over not just the hard questions, but the easy ones as well. In a report issued on December 14, 2023, we documented many instances where the Court’s message about the illegality of religious discrimination in public programs has been neither received nor understood. Despite the clarity of the Supreme Court’s message—that the government cannot refuse to extend otherwise available benefits to organizations, either because they are religious or because they do religious things, many dozens—if not hundreds—of public programs continue to do both.

Our report, which examined statutes and regulations in a dozen states, reveals that violations of the Carson principle pervade public programs. In education, for example: Many PreK programs exclude religious providers or require their programming to be nonreligious. Special-education laws allow for the public placement of disabled children in secular, but not religious, private schools. At least two states permit secular nonprofits or colleges, but not religious ones, to authorize charter schools. Some exclude certain religious colleges or religious classes from “dual-enrollment” programs for high school students, as well as from public scholarship programs; still, others restrict the ban of students participating in college work-study programs from engaging in “sectarian” activities.

Outside of the education context, many social service, community development, and historic preservation programs—even programs encouraging charitable contributions by government employees—run afoul of the Carson principle. In Alabama, a family resource center must ensure that its services are nonsectarian. Florida’s program combatting domestic violence excludes from curriculum “faith-based ideology associated with a particular religion.” Arkansas limits grants under its Older Worker Community Service Employment Program and its Life Choices Lifeline Program to “nonsectarian” activities. Georgia encourages state employees to make voluntary donations to charitable organizations—unless they are religious. In the community development context, many states exclude some or all religious organizations (including colleges and hospitals) from programs subsidizing the construction or renovation of facilities. Still, others employ religious criteria to exclude certain properties from programs encouraging historical preservation.

Why does unconstitutional religious discrimination persist in so many public programs? Doubtless, some government officials, hostile to religion, are ignoring the Court’s precedents. The Biden administration, for example, has proposed regulations that will make it harder for religious organizations to participate in so-called “charitable choice” programs while maintaining their religious character. Some of these religious organizations are probably ignorant of problematic restrictions in the programs that they administer. But many others may be unaware of, or misunderstand, developments in the Court’s religion-clause doctrine. Carson was not a one-off anomaly. Over the past few decades, the Court has abandoned the misguided “separationist” instincts of the postwar era and clarified that the First Amendment demands government neutrality, not hostility, toward religious believers and institutions. Carson represents the culmination of a thorough reorientation. The Court definitively holds that the constitution not only allows religious institutions to fully participate in public programs—a principle that was established more than two decades ago—but requires that they be permitted to do so, without sacrificing their religious character, as well. And, less than a week after Carson, in Kennedy v. Bremerton School District, the Court definitively jettisoned the ahistorical “Lemon test,” in favor of using “history and tradition” as the barometer of when a government action runs afoul of the Establishment Clause.

Despite the constitutional Bat Signal in Carson and other decisions, many government officials maintain what the Becket Fund for Religious Liberty has called a “a shag-carpet understanding” of the religion clauses that “is stuck in the 1970s and has not been updated since.” Under this incorrect view, religion is constitutionally suspect, and government cooperation with religious individuals and organizations is a constitutional taboo. An amicus brief submitted by one of us on behalf of the Notre Dame Religious Liberty Clinic in the Kennedy case, for example, documented dozens of examples of public-school students who were reprimanded for religious speech or conduct, including handing out candy canes with bible verses taped to them, choosing God as their hero in a class project, mentioning religion in a graduation speech, or even saying “bless you” to a classmate. In each of these cases, school officials erroneously and reflexively assumed that, constitutionally, even private religious expression and conduct must be banished from public schools.

A similar dynamic may be playing out in state programs: Government officials, influenced by an outdated understanding of the First Amendment, mistakenly embrace a default presumption against including religious institutions, when, in fact, the correct constitutional presumption runs the other way.

Several common characteristics of the programs we discuss in our report support this hypothesis. Many programs include religious institutions but only to the extent they engage in so-called “nonsectarian” activities. These limits embrace the so-called “status-use” distinction explicitly rejected in Carson by drawing a line between discrimination based on the participant’s religious character (or status) and discrimination against religious conduct. Throughout the Carson litigation, Maine maintained that it was not excluding “sectarian” schools from its tuition assistance program because they were religious but rather because they taught religion. The Court rightly concluded that this “distinction lacks a meaningful application not only in theory, but in practice as well.” After all, being religious usually means doing religious things. So telling religious organizations, “You can participate if you engage only in secular conduct,” is tantamount to putting it to what the Court made clear in Trinity Lutheran Church v. Comer (2017) is an unconstitutional choice, “It may participate in an otherwise available benefit program or remain a religious institution.” Additionally, some programs seem to be structured around a capacious reading of Locke v. Davey (2004), which rejected a free-exercise challenge to a state’s decision to prohibit a recipient from using scholarship funds to prepare for the ministry. A number of states exclude, for example, pervasively religious colleges from scholarship programs or refuse to subsidize religious courses taken by students. But Carson rejected the reading of Locke that would justify most of these restrictions, taking care to limit its holding to the “historic and substantial state interest” against using “taxpayer funds to support church leaders.” Other points of confusion may influence program administrators as well—including the way that recent free-exercise decisions intersect with state antiestablishment provisions (or “Blaine Amendments”), rendering the latter unenforceable in many cases and the assumption that the government may fund religious conduct only indirectly, as the result of an intervening private choice.

To be fair, it has been less than two years since Carson clarified that free-exercise clause’s prohibition on religious discrimination extends both to religious status and religious conduct, and, Kennedy finally acknowledged that the Lemon test is dead. Perhaps we should not be surprised that states have yet to engage in a systematic constitutional cleanup effort in response to these decisions. But our report suggests that it’s time to replace the carpet.