The First Amendment’s Free Exercise Clause squarely prohibits the government from disfavoring people and groups because of their religious character, commitments, and conduct. The Supreme Court has made clear that when governments offer programs to cooperate with private groups to advance public goals—such as education, poverty alleviation, or healthcare—they may neither exclude religious organizations nor require them to secularize in order to participate. As the court explained in Trinity Lutheran v. Comer (2017), Espinoza v. Montana Department of Revenue(2020) and Carson v. Makin (2022), the government needn’t subsidize such private activities as education, healthcare and social services. But once it does so, it can’t disqualify otherwise-eligible religious organizations, nor may it refuse to support otherwise qualifying activities solely because they are religious.

Yet over the years, governments at all levels—local, state, and federal—have put in place an immense number of statutes and regulations, across a range of programs, that do exactly that. These programs reflect an outdated understanding of the First Amendment – one that views religion as constitutionally suspect and assumes that religious organizations and conduct must be excluded from public life and programs. The Supreme Court has affirmed that this view has it exactly backward. The Court has also put to bed an overly aggressive reading of the Establishment Clause, which made many government officials afraid to do—or offer support to—anything that might associate them with religion.

This Project is a joint undertaking of the Notre Dame Law School’s Education Law Project, Notre Dame Law School’s Lindsay and Matt Moroun Religious Liberty Clinic, the Orthodox Union’s Teach Coalition, the EPIC Coalition. The goal of this project is to identify laws and regulations that may unconstitutionally exclude religious organizations and religious activity from public programs.  We seek to make information about those programs publicly available in order to encourage reforms that conform these programs the First Amendment’s non-discrimination mandate, as articulated by the Court in cases like Trinity Lutheran, Espinoza, and Carson.