Not All Government Expenditures Are a Subsidy to Religion

Ilya Shapiro and K. Hollyn Hollman push us to think more carefully about when “no establishment” values slip over from preventing government actions with a “predominant purpose of advancing religion” into singling out religion for special disadvantage. In one sense, Trinity Lutheran is an easy case.


How can a state commit funds to make playgrounds safer from the predictable falls and scrapes children experience, but withhold that good from children who attend religious schools or play on their playgrounds? As Justice Elena Kagan framed the issue during oral argument, “the question is whether some people can be disentitled from applying to that program and from receiving that money if they are qualified based on other completely nonreligious attributes, and they’re disqualified solely because they are a religious institution doing religious things.” One would hope the Court rejects a vision of America where religious people alone are disqualified from public benefits available to everyone else.


But as Shapiro notes, this case is an outlier. It is not so often that governments adopt public benefit programs that serve everyone except the religious—although “Blaine Amendments” disqualifying religious recipients remain in 37 states and should be discarded. And it is not so often the governments choose to display the Ten Commandments or creches at city hall, provoking Establishment Clause challenges.


Far more prevalent are government programs that support human flourishing, like vouchers for secondary education, school lunch programs, state college grants, funding for scientific research, etc. Religious entities shoulder social services and other functions on a staggering scale, by one estimate $9.2 billion in social services alone. Add to this an estimated 7.6 million volunteers from congregations, and society has a selfish interest in religious groups continuing to do good works.


A flashpoint has ignited around public funding: if you take public money, you play by public rules. Here’s the rub: society often devotes resources to achieve a specific end, like educating its citizens. 


Sometimes, a student—or her family—is the one who chooses where to spend those public dollars. This is no more a subsidy of religious colleges or schools than providing rubberized surfaces on all playgrounds, including religious ones. Religious schools are the incidental beneficiaries of monies that change the arc of a student’s life.


One in four colleges in the United States—more than 1000—are religiously affiliated. Many train people to teach the faith, but most are places where students can gain “an education based on biblical faith in order to develop men and women in intellectual maturity, wisdom, and Christian faith who are committed to serving the church, community, and world.”


These schools are religious in more than name alone. Students learn science, math, civics, and other subjects, true, but the university is also concerned with “spiritual formation.” Religious colleges have a pastoral function and relationship to all their students, including their LGBT students. 


But religious schools are an important bulkhead in a sea of change. In recent years, people of faith have found themselves in a literal minority, at least as to certain beliefs. Transmitting faith in a conscious way has become an existential endeavor. In Strangers in a Strange Land: Living the Catholic Faith in a Post-Christian World, Archbishop Charles Chaput describes this moment as “a time of transition” in which cultural trends are taking shape, some of which “are distinctly unfriendly to the way Christians live their faith.” Echoing Chaput, Rod Dreher, author of the bestselling The Benedict Option, says Christians must “hold on even more strongly to the truths of the faith because there will be even more pressure in the public square to conform to this post-Christian orthodoxy, to abandon our faith, to apostatize.” 


In 2016, California Senator Ricardo Lara introduced a bill to subject any post-secondary educational institution (other than seminaries), which avails itself of the exemption given it under the federal education law known as Title IX, to liability for sexual orientation or gender identity discrimination. This would have meant that the schools could be sued, but worse, Cal Grant dollars could not be spent at schools unless they yielded on their federally protected religious convictions around sexual orientation and the nature of gender. Religious exemptions were seen as nothing more than “a loophole that gave faith-based institutions a ‘license to discriminate’ against LGBT students.”


Lara was concerned that students would be caught unawares if “their sexual orientation or gender identity did not align with the universities’ ‘values.’’ This concern was not unfounded. Although no college seems to expressly refuse admission to LGBT students, in practice some bar “homosexual acts.” Far better to institute equally applicable conduct policies—e.g., all students should be chaste, gay or straight, without prohibiting gay sexuality alone. In some especially poignant cases, students have enrolled in a college only later to fall in love with a person of the same sex, resulting in dismissal

For their part, religious groups feared “Senate Bill 1146 [would] result in its own form of discrimination by stigmatizing and coercively punishing religious beliefs that disagree on contested matters related to human sexuality.” The overarching fear was the “California bill would erase religious schools.” Stakeholders raised $350,000 and “flooded” Assembly members’ districts with mailers.



Then something remarkable happened: the author of a parallel bill and the president of Biola University, a religious college in California, “decided to talk to each other.” Assembly member Evan Low and President Barry Corey listened to one another and took each others’ concerns seriously.


Rather than the “new normal of division, incivility, and hate,” the two found areas of common interest—like supporting first-generation and minority students to succeed in college. Governor Brown ultimately signed into law a measure that increased transparency about a school’s values.


Perhaps one ground on which agreement can be found going forward is admissions. Despite the romanticism of the Benedict option, students after college will not withdraw behind a wall to toil indefinitely—they will enter, and should be prepared for, the world and all its differences. Even within islands of believers, the community is stronger for being more inclusive, including of LGBT students. Exclusion defeats the university’s own educational mission, harming both those excluded and the university community as a whole.



K. Hollyn Hollman lauds “compromise, in the best of our democratic tradition, [when] all sides are willing to come to the negotiating table.” She is right that the “politicization of competing claims” makes this difficult. A first step in reaching compromise is not to treat all money that flows from government as a subsidy to religion.


Also from this issue

Lead Essay

  • Ilya Shapiro reviews recent U.S. Supreme Court cases on religious liberty and examines how each of them is the product of government intrusion into civil society - into areas of life that, while public, are nongovernmental. These include organized religions, businesses, and private civic and social groups. These institutions of civil society do much good work, and Americans of all political persuasions are increasingly aware that they are under attack. We are brought into needless conflict with one another, Shapiro writes, whenever the government decrees how these institutions must conduct themselves with regard to matters of conscience.

Response Essays

  • David H. Gans draws our attention away from the Free Exercise Clause and toward the Establishment Clause. A ban on travel from overwhelmingly Muslim countries - and not on travel from others - constitutes an official disfavor, he argues, particularly in light of the clear statements that have been made about the ban’s intent. The greatest threat to religious liberty today is the threat to the religious liberty of Muslims. Meanwhile, he argues, religious exemptions to general laws are often of doubtful legality and tend to threaten the liberties of those whom they do not single out for protection.

  • Religious liberty is protected in two ways in our Constitution: First, the government may not establish any religion, nor may it officially disfavor any; and second, individuals’ free exercise is also protected. K. Hollyn Hollman urges us to reject too-simple narratives about religious liberty and government interference, though, because the politicization of religious liberty is itself a danger to religious liberty. Political point-scoring makes workable compromises harder to find.

  • Robin Fretwell Wilson issues a call for compromise in today’s battles over the Establishment Clause. There can be no expectation that either the religiously observant, or those to whom they object, will disappear from our society anytime soon. And yet life must go on. Compromise is not such an unreasonable thing to expect, she argues, because all have a vested interest in finding ways to live together despite their differences.