Department of Justice says government can’t restrict funding based on religious status

The U.S. Department of Justice this week said that the government’s practice of restricting federal funding from religious activities is “presumptively unconstitutional,” paving the way for greater public funding of religious groups.

Such restrictions on federal funding are made “without any compelling government interest,” the Justice Department said in an Aug. 25 memorandum opinion issued to the Office for Civil Rights in the Department of Health and Human Services.

In its 2004 decision Locke v. Davey, the U.S. Supreme Court held that public authorities are free to withhold funding from programs and activities that are explicitly religious in nature.

In its memorandum, however, the Justice Department’s Office of Legal Counsel said restricting federal funding based on either the religious status of an organization or the use of funds for religious purposes is “not required” under the U.S. Constitution.

Such restrictions “discriminate based on anticipated religious use without any compelling governmental interest,” the memorandum said, and as a result they “violate the Free Exercise Clause.”

“Use-based religious restrictions on generally available federal funding…