Constitutionality of Religious Restrictions on the Use of Federal Funds

(Slip Opinion) Constitutionality of Religious Restrictions on the Use of Federal Funds Federal statutory provisions and regulations that restrict federal funding based on either the religious status of a program provider or anticipated religious uses of the funds are not required under the Establishment Clause. Because the statutory and regulatory religious restrictions applicable to programs administered by the Department of Health and Human Services discriminate based on anticipated religious use without any compelling governmental interest, they violate the Free Exercise Clause. Use-based religious restrictions on generally available federal funding programs are presumptively unconstitutional. August 25, 2026 MEMORANDUM OPINION FOR THE DIRECTOR OF THE OFFICE FOR CIVIL RIGHTS DEPARTMENT OF HEALTH AND HUMAN SERVICES Faith-based organizations across the United States deliver vital charita- ble services—feeding the hungry, supporting families, and helping indi- viduals overcome addiction. The federal government helps fund this work. But the Department of Health and Human Services (“HHS”) has identified several statutes applicable to programs and grants it administers that restrict the use of federal funds when faith-based organizations are in- volved, including: the Personal Responsibility and Work Opportunity Act of 1996 (“PRWORA”), 42 U.S.C. § 604a(j); the Public Health Service Act (“PHSA”), id. §§ 290kk-2, 300x-65(i); and the Child Care and Devel- opment Block Grant Act of 1990 (“CCDBGA”), id. §§ 9858k(a), 9858l(a)(4). In 2019, our Office concluded that a statutory restriction on the exten- sion of federal loans to historically black colleges and universities “for facilities that are predominantly used for devotional religious activity” did not violate the Free Exercise Clause under then-prevailing Supreme Court doctrine. Religious Restrictions on Capital Financing for Historically Black Colleges and Universities, 43 Op. O.L.C. 191, 192 (2019) (“HBCU Religious Restrictions”). We reached that conclusion by asking “whether the restriction is based upon an institution’s religious status or whether it is based upon how the federal support would be used.” Id. at 196. We remained “mindful, however, that this area of law [was] still being devel- oped.” Id. at 197. 1  50 Op. O.L.C. __ (Aug. 25, 2026) HHS has asked whether it must update its framework for assessing grants to faith-based organizations in the light of the Supreme Court’s intervening precedent in Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020), Kennedy v. Bremerton School District, 142 S. Ct. 2407 (2022), and Carson ex rel. O.C. v. Makin, 142 S. Ct. 1987 (2022), decisions that post-dated our 2019 HBCU Religious Restrictions opinion. See Memorandum for Josh Craddock, Deputy Assistant Attorney General, Office of Legal Counsel, from Emily Claire Mimnaugh, Deputy General Counsel, Department of Health and Human Services, Re: Request for Opinion on Government Funding and Religious Use at 4–5 (July 1, 2026) (“HHS Memorandum”). Specifically, HHS asked: (1) whether the reli- gious restrictions applicable to HHS are required by the Establishment Clause; and (2) if not, whether they are constitutional under the Free Exercise Clause. See id. at 1. The answer to both questions is no. To the extent our 2019 opinion indicated otherwise, e.g., HBCU Religious Re- strictions, 43 Op. O.L.C. at 208–13, it no longer reflects the current state of the law. Our analysis has three parts. Part I describes the statutory religious re- strictions applicable to HHS-funded programs. Part II explains why those religious restrictions are not required by the Establishment Clause. Part III determines that they violate the Free Exercise Clause. Although we ad- dress the Religion Clauses separately for analytical clarity, we do not suggest that the Clauses are in tension. Indeed, “the Clauses have ‘com- plementary’ purposes, not warring ones where one Clause is always sure to prevail over the others.” Kennedy, 142 S. Ct. at 2426. There is “no conflict between the constitutional commands” of the Free Exercise and Establishment Clauses. Id. at 2432. I. A. Enacted only a few years apart, the PRWORA and PHSA provisions at issue were both part of the “Charitable Choice” movement. See generally 42 U.S.C. §§ 604a, 290kk-1, 300x-65(i), 9858k(a), 9858l(a)(4); see also Jonathan Friedman, Charitable Choice and the Establishment Clause, 5 Geo. J. on Fighting Poverty 103, 113 (1997). And although the CCDBGA was not part of Charitable Choice, its funding restriction on religious 2  Constitutionality of Religious Restrictions on the Use of Federal Funds activity and its limitation on religious decisions in employment and ad- missions share many of the same features and motivations. “The central objective of Charitable Choice [was] to involve faith- based providers in anti-poverty efforts, while protecting the religious integrity and character of those organizations.” Friedman, 5 Geo. J. on Fighting Poverty at 113. For PRWORA, Charitable Choice meant “al- low[ing] States to contract with religious organizations” to “administer and provide services under” various welfare programs. 42 U.S.C. § 604a(a)(1)(A), (b). For the PHSA, it meant “allow[ing] religious organi- zations to be program participants on the same basis as any other nonprof- it private provider” in the administration of substance-abuse programs. Id. § 290kk-1(b). The CCDBGA also assumed that religious child-care pro- viders would be eligible to participate on an equal basis with other private providers. See id. § 9858l. As described in President George W. Bush’s follow-on Faith-Based and Community Initiatives, the goal was “to enlist, equip, enable, empower, and expand the work of faith-based and other community organizations.” Exec. Order No. 13199, 66 Fed. Reg. 8499, 8499 (Jan. 29, 2001); see also Exec. Order No. 13279, 67 Fed. Reg. 77,141, 77,142–43 (Dec. 12, 2002); Nicole Stelle Garnett & Cameron Grinnell, Manhattan Inst., The Persistence of the Unconstitutional Sta- tus/Use Distinction in Federal Grants to Religious Nonprofits at 2–3 (2025), https://perma.cc/F9SD-AA66. Charitable Choice and its kin thus reflected an affirmative policy of inclusion toward religious organizations. Although Charitable Choice aimed to include religious institutions in these government funding programs, it also imposed use-based religious restrictions geared toward avoiding perceived Establishment Clause snares. See Brian Craig Kimball, Comment, The Federal Faith-Based and Community Initiative: A Guide for Future Legislation, 71 Miss. L.J. 241, 259–60 (2001). 1 PRWORA states that “[n]o funds provided directly to institutions or organizations to provide services and administer programs 1 Senator John Ashcroft, one of the chief architects of Charitable Choice, argued that the restrictions “embod[y] U.S. Supreme Court case precedent to clarify what is constitu- tionally permissible when state and local governments cooperate with the religious and charitable sector of society.” Friedman, 5 Geo. J. on Fighting Poverty at 114 (citation omitted). Senator Ashcroft believed that “the focus should not be on whether sectarian organizations receive public funds, but on whether those funds are used for religious activities.” Id. (emphasis added). 3  50 Op. O.L.C. __ (Aug. 25, 2026) under [PRWORA] shall be expended for sectarian worship, instruction, or proselytization.” 42 U.S.C. § 604a(j).2 The PHSA similarly provides that “[n]o funds provided under a designated [PHSA] program shall be expend- ed for sectarian worship, instruction, or proselytization.” Id. § 290kk-2. A separate provision restricts funds provided “through a grant or contract to a religious organization to provide services under any [PHSA] substance abuse program . . . for sectarian worship, instruction, or proselytization.” Id. § 300x-65(i).3 The CCDBGA states that “[n]o financial assistance provided under this subchapter, pursuant to the choice of a parent under section 9858c(c)(2)(A)(i)(I)”—that is, the option “to enroll [a] child with a child care provider that has a grant or contract for the provision of such ser- vices”—“or through any other grant or contract under the State plan, shall be expended for any sectarian purpose or activity, including sectarian worship or instruction.” Id. §§ 9858k(a), 9858c(c)(2)(A)(i)(I). Congress deliberately excluded indirect assistance from that provision, providing that child-care certificates “shall not be considered to be grants or con- tracts,” and that “[n]othing in this subchapter shall preclude the use of such certificates for sectarian child care services if freely chosen by the parent.” Id. § 9858n(2).4 The CCDBGA also imposes an anti- discrimination requirement on certain religious child-care providers— those receiving 80% or more of their operating budget from government funding—as a condition on the receipt of further funding under the pro- gram. Such providers must not “discriminate against any individual” in either the employment of persons who primarily work directly with chil- dren or in admissions “because of the religion of such individual.” Id. § 9858l(a)(4). 2 This restriction affects HHS’s Administration for Children and Families (“ACF”), which administers block grants to states for the Temporary Assistance for Needy Families (“TANF”) program, as well as the states that provide services through charitable, reli- gious, or private organizations. 42 U.S.C. § 604a(a)(1)(A). 3 This restriction affects programs administered by the Substance Abuse and Mental Health Services Administration that award assistance to public or private entities for the prevention or treatment of substance abuse. 42 U.S.C. § 290kk(a). It also affects funded states that partner with non-governmental organizations for the provision of substance- abuse services. Id. § 300x-65(j). 4 The CCDBGA created the Child Care and Development Fund program. Its statutory restriction affects ACF’s administration of block grants to states for child-care programs, as well as the states themselves when they partner with child-care providers. 4  Constitutionality of Religious Restrictions on the Use of Federal Funds Two features indicate that these restrictions were deliberately crafted to avoid problems under then-current Supreme Court Establishment Clause precedents—which the Court has since abrogated or undermined. See Part II. First, to avoid the “special Establishment Clause dangers” of direct- payment programs, Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 842 (1995), the restrictions apply to funds provided directly to religious institutions rather than indirect-payment programs of “true private choice,” Zelman v. Simmons-Harris, 536 U.S. 639, 649 (2002). PRWORA expressly applies to “funds provided directly” to religious institutions. 42 U.S.C. § 604a(j). The PHSA restriction similarly applies to “funds provided under a designated program,” id. § 290kk-2, which is defined to include “discretionary and formula grant programs adminis- tered by the Substance Abuse and Mental Health Services Administration [“SAMHSA”] that make awards of financial assistance to public or pri- vate entities for the purpose of carrying out activities to prevent or treat substance abuse,” id. § 290kk(a). In other words, the statutory restriction applies only to programs that provide grants directly “to” private organizations (such as religious organizations), as opposed to programs that provide vouchers or other forms of indirect funding. Cf., e.g., id. § 604a(a)(1)(B). And the CCDBGA restriction applies to financial assis- tance provided directly to “child care provider[s],” id. § 9858c(c)(2)(A)(i)(I), and to other end recipients of federally funded grants or contracts, see id. §§ 9858k(a), 9858l. In the same breath, it allows indirect religious uses of child-care certificate funds, see id. § 9858n(2), tracking the private-choice line drawn in Zelman, see 536 U.S. at 649. Second, the restrictions prohibit only the use of funds for “sectarian worship, instruction, or proselytization,” id. §§ 604a(j), 290kk-2; see also id. § 9858k(a) (“sectarian purpose or activity, including sectarian worship or instruction”), or the receipt of certain funds if providers make religious employment or admissions decisions, id. § 9858l(a)(4). These restrictions ostensibly enforced the Supreme Court’s “proscription against ‘funding a specifically religious activity in an otherwise substantially secular set- ting.’” Bowen v. Kendrick, 487 U.S. 589, 613 (1988) (alteration accepted) (quoting Hunt v. McNair, 413 U.S. 734, 743 (1973)). Funding to “perva- sively sectarian” institutions was presumed to further religious activity. Id. at 610. 5  50 Op. O.L.C. __ (Aug. 25, 2026) B. HHS implements a similar religious restriction for many programs through 45 C.F.R. part 87. For direct-assistance programs, the relevant regulations “prohibit[] organizations from engaging in explicitly religious activities . . . as part of the HHS-funded program or service.” HHS Mem- orandum at 5 (citing 45 C.F.R. § 87.3(d)). According to the regulations, “[t]hose activities must be offered separately in time or location and participation must be voluntary,” while “indirect assistance is not subject to that restriction.” Id. Part 87 also prohibits organizations receiving direct aid from “discriminat[ing] against a program beneficiary or pro- spective program beneficiary on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice.” 45 C.F.R. § 87.3(f). HHS’s regulations additionally include “program-specific analogues” applicable to the Substance Abuse Prevention and Treatment Block Grant; the Projects for Assistance in Transition from Homelessness Formula Grants; and discretionary funding under the PHSA for SAMHSA’s substance-abuse prevention and treat- ment services. Id. at 5–6 (citing 42 C.F.R. §§ 54.1–54.8, 54a.1–54a.8).5 Under these regulations, “[a]ny program with religious content must be a separate and distinct program from the federally funded program, and the distinction must be completely clear to the consumer.” Memorandum for Healthy Marriage and Responsible Fatherhood Federal Grantees, from Administration for Children and Families, Department of Health and Human Services, Re: Separation of Explicitly Religious Activities at *1 (2008) (“HHS, Separation of Explicitly Religious Activities”), https:// perma.cc/ZGQ7-LN42. And if the religious organization chooses to separately offer its course containing religious content, it will be subject to burdensome differentiation and cost-allocation requirements. See id. For example, if a faith-based organization runs a federally supported soup kitchen, can organizers say a prayer before they serve the meal? 6 Not 5 Other HHS Charitable Choice regulations, which apply to programs authorized under the Community Services Block Grant Act, raise materially similar constitutional issues. See 45 C.F.R. pt. 1050. 6 See White House Off. of Faith-Based & Cmty. Initiatives, Guidance to Faith-Based and Community Organizations on Partnering with the Federal Government at 2 (2006) (“GWB Guidance”), https://perma.cc/GUK2-MTU6. 6  Constitutionality of Religious Restrictions on the Use of Federal Funds unless the “explicitly religious activit[y]” of prayer is “separate[] in time or location” from the funded services. 45 C.F.R. § 87.3(d). Similarly, a religious organization that receives federal funds to help unemployed people improve their job skills could not convey their religious teachings about the value and dignity of work. 7 And a religious organization that teaches a federally funded course on healthy marriage and responsible fatherhood could not endorse any religious messages in its program. 8 We understand that such federally mandated bifurcation has proven challenging to small faith-based organizations, and may deter religious institutions from participating altogether in federally funded programs. 9 II. Three strands of Supreme Court precedent illuminate the history of use- based restrictions on government funding, each of which was rooted in— or absorbed by—the now-defunct precedent of Lemon v. Kurtzman, 403 U.S. 602 (1971). We now describe the Lemon test and the three lines of precedent that grew out of it. We then explain why Lemon was ultimately “abandoned” in favor of a framework based on the original meaning of the Establishment Clause. Kennedy, 142 S. Ct. at 2427. Applying that framework, we conclude that the PRWORA, PHSA, and CCDBGA re- strictions are not required by the Establishment Clause. A. Our Nation has a mixed history of placing legal restrictions on the pro- vision of government funds to religious institutions. Some parts of this history involve “shameful” restrictions based on religious status. Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plurality opinion). Other parts of that history—relating to restrictions based on religious use—were more well- intentioned but ultimately misguided. The PRWORA, PHSA, and 7 See GWB Guidance at 11. 8 Memorandum for Healthy Marriage and Responsible Fatherhood Federal Grantees, from Administration for Children and Families, Department of Health and Human Ser- vices, Re: Curricula Use and Compliance with 45 CPR Part 87 at 1–2 (Jan. 23, 2008), https://perma.cc/UKL8-RTZ6. 9 See Dep’t of Just., Eradicating Anti-Christian Bias within the Federal Government: The 2026 Report by the Task Force to Eradicate Anti-Christian Bias at 111 (2026), https://perma.cc/Y38H-P86A. 7  50 Op. O.L.C. __ (Aug. 25, 2026) CCDBGA restrictions grew out of that history, enacted in response to the Supreme Court’s development of its Religion Clauses jurisprudence over the course of the twentieth century. 1. Some of the earliest religious restrictions were born of “prejudice,” Espinoza, 140 S. Ct. at 2271 (Alito, J., concurring), and sought to bar government funding to religious institutions based on their religious status. The most notorious of these was the so-called Blaine Amendment. Proposed in 1875 by Speaker of the House James G. Blaine, this amend- ment “would have amended the Constitution to bar any aid to sectarian institutions.” Mitchell, 530 U.S. at 828 (plurality opinion). Because “the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, . . . it was an open secret that ‘sectarian’ was code for ‘Catholic.’” Id.; see also Locke v. Davey, 540 U.S. 712, 723 n.7 (2004). Although the Blaine Amendment passed the House, it fell two votes short of the necessary two-thirds majority in the Senate and was never referred to the states for ratification. See Espinoza, 140 S. Ct. at 2268 (Alito, J., concurring). Restrictions on funds provided to “sectarian” institutions nevertheless made their way into many state laws, “often as a condition of entering the Union.” Id. at 2268–69. For example, Montana’s enabling act required “[t]hat provision shall be made for the establishment and maintenance of systems of public schools . . . free from sectarian control.” Act of Feb. 22, 1889, ch. 180, § 4, 25 Stat. 676, 677; see also Locke, 540 U.S. at 723–24 n.7 (recording that Washington State’s enabling act contained nearly identical language). These state enabling acts “complet[ed] the unfinished work of the failed Blaine Amendment,” and as of 2020, 38 states still had “little Blaine Amendments.” Espinoza, 140 S. Ct. at 2269, 2271 (Alito, J., concurring) (citations omitted); see also Zelman, 536 U.S. at 721 (Breyer, J., dissenting) (observing how anti-Catholic sentiment “played a signifi- cant role” in the refusal to “help pay for ‘sectarian’ (i.e., Catholic) school- ing”). Such status-based religious restrictions are understood to have “a shameful pedigree that we do not hesitate to disavow.” Mitchell, 530 U.S. at 828 (plurality opinion). And the Supreme Court has made abundantly clear that “disqualifying otherwise eligible recipients from a public 8  Constitutionality of Religious Restrictions on the Use of Federal Funds benefit ‘solely because of their religious character’ imposes ‘a penalty on the free exercise of religion that triggers the most exacting scrutiny.’” Espinoza, 140 S. Ct. at 2255 (quoting Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 462 (2017)). They are rightly con- sidered “presumptively unconstitutional.” HBCU Religious Restrictions, 43 Op. O.L.C. at 196. “No matter how narrowly drawn, a religious-funding restriction stemming from ‘hostility toward religion’ is unconstitutional.” Id. at 212 (quoting Locke, 540 U.S. at 721). 2. Other religious restrictions—such as those that are the subject of this opinion—are more subtle. They seek to place limits on the religious use of government funds. Unlike the status-based restrictions discussed above, these use-based restrictions are not necessarily animated by religious prejudice. As alluded to above, “[w]hat evidence we have . . . suggests that Congress’s motive for these restrictions was likely grounded in a legitimate desire to conform the statute to the Supreme Court’s then- prevailing Establishment Clause precedent, not in religious animus.” Id. at 213. In Lemon, the Supreme Court “ambitiously attempted to find a grand unified theory,” Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2087 (2019) (plurality opinion), that would provide a “one-size-fits-all test” for applying the Establishment Clause, Shurtleff v. City of Boston, 142 S. Ct. 1583, 1603–04 (2022) (Gorsuch, J., concurring in the judgment). The Court “gleaned” three tests for identifying an Establishment Clause viola- tion from “the cumulative criteria developed by the Court over many years”: (1) Does the challenged government action “have a secular legislative purpose”? (2) Is the challenged government action’s “principal or primary effect . . . one that neither advances nor inhibits religion”? (3) Does the challenged government action “foster an excessive gov- ernment entanglement with religion”? Lemon, 403 U.S. at 612–13 (cleaned up). Later, the Court “further . . . refined” these tests to ask simply “whether the challenged governmental 9  50 Op. O.L.C. __ (Aug. 25, 2026) practice either has the purpose or effect of ‘endorsing’ religion.” County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 592 (1989); see also id. at 628 (O’Connor, J., concurring in part and concur- ring in the judgment) (explaining that “the endorsement test asks the right question”). Lemon’s three questions braid three distinct strands of Supreme Court precedent. These in turn influenced the adoption of use-based restrictions on government funding. Many such restrictions fell within the Supreme Court’s “play in the joints” jurisprudence. Others were crafted to reflect the Supreme Court’s “pervasively sectarian” limitation. Still others sought to walk the line drawn by the Court between the “direct” and “indirect” funding of religious institutions. We address each strand of precedent in turn. a. Even before Lemon, the Supreme Court described a certain “play in the joints” between the Establishment Clause and the Free Exercise Clause. That phrase originated in Walz v. Tax Commission of the City of New York, when the Supreme Court upheld a tax exemption provided to “reli- gious organizations for religious properties used solely for religious worship.” 397 U.S. 664, 666 (1970). The Court coined that now-famous phrase by reference to government actions that were perceived not to “sponsor[]” or “interfere” with religion or to “have the effect of doing so.” Id. at 669. It identified the “general principle” that the First Amend- ment “will not tolerate either governmentally established religion or governmental interference with religion.” Id. “Short of those expressly proscribed governmental acts,” the Court explained, there was space for “a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” Id. The tax exemption in Walz fell within this “play in the joints” because it did not violate the “course of constitutional neutrality.” Id. Or, put differently, “the trans- cendent value of free religious exercise in our constitutional scheme leaves room for ‘play in the joints’ to the extent of cautiously delineated secular governmental assistance to religious [institutions].” Norwood v. Harrison, 413 U.S. 455, 469 (1973). The Court eventually glossed the “play in the joints” principle to mean that “there are some state actions permitted by the Establishment Clause 10  Constitutionality of Religious Restrictions on the Use of Federal Funds [that are] not required by the Free Exercise Clause.” Locke, 540 U.S. at 718–19; see also Cutter v. Wilkinson, 544 U.S. 709, 719–20 (2005). But “[a]t some point, accommodation may devolve into ‘an unlawful fostering of religion.’” Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 334–35 (1987) (quoting Hobbie v. Unemp. Appeals Comm’n of Fla., 480 U.S. 136, 145 (1987)). Indeed, the entire “play in the joints” enterprise was animated by a desire to “avoid excessive entanglement” between government and religion—a touchstone of the Lemon test. Walz, 397 U.S. at 669–70, 674; see also Amos, 483 U.S. at 335 (noting that Walz “became the third element of the Lemon test”). But what started as a shield to protect government programs from Establishment Clause challenges eventually turned into a sword. Govern- ments started to argue that the “play in the joints” meant that, just like they were free to include religious organizations in funding programs, they were also free to exclude religious organizations whose use of government funds involved religious uses. The State of Washington successfully pushed this argument to defend its constitutional provision “prohibiting even indirectly funding religious instruction” through a gen- eral scholarship program “that w[ould] prepare students for the ministry.” Locke, 540 U.S. at 719. The States of Missouri, Montana, and Maine raised similar “play in the joints” arguments, though each without success. See Trinity Lutheran, 582 U.S. at 458; Espinoza, 140 S. Ct. at 2254; see also Carson, 142 S. Ct. at 2009–10 (Breyer, J., dissenting). Many remaining use-based restrictions can be understood in the histori- cal context of this “play in the joints” framework. According to that principle, a government had some leeway to either include or exclude religious activities in programs it funded. See Locke, 540 U.S. at 719. Use-based restrictions—such as those incorporated into PRWORA, the PHSA, and the CCDBGA—may simply reflect a policy of exclusion, premised on the government’s so-called “Establishment Clause interest.” Good News Club v. Milford Cent. Sch., 533 U.S. 98, 113 (2001). 10 When 10 Even when the Supreme Court applied the “play in the joints” framework, it repeat- edly emphasized that states do not have a compelling interest “in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution.” Widmar v. Vincent, 454 U.S. 263, 276 (1981). And in Carson, the Court reemphasized that “an interest in separating church and state more fiercely than 11  50 Op. O.L.C. __ (Aug. 25, 2026) viewed in this light, some have argued that “States enjoy a degree of freedom to navigate the [Religion] Clauses’ competing prohibitions,” which “includes choosing not to fund certain religious activity where States have strong, establishment-related reasons for not doing so.” Carson, 142 S. Ct. at 2004 (Breyer, J., dissenting). b. A second line of precedent prohibited government funds from “flow[ing] to an institution in which religion is so pervasive that a sub- stantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting.” Hunt, 413 U.S. at 743. This “pervasively sectarian” limitation grew out of a fear that “direct government aid might have” the “primary effect of advancing religion.” Bowen, 487 U.S. at 610 (citation omitted); cf. Tilton v. Richardson, 403 U.S. 672, 685–87 (1971) (plurality opinion); Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 773–74 (1973). “Aid normally may be thought to have a primary effect of advancing religion,” the Court explained, “when it funds a specifically religious activity in an otherwise substantially secular set- ting.” Hunt, 413 U.S. at 743. A keen observer might suggest this prohibition against funding “perva- sively sectarian” entities depends on the same status-based distinctions that the Supreme Court called “shameful.” Mitchell, 530 U.S. at 828 (plurality opinion). But the Court long stressed that “the proposition that the Establishment Clause prohibits any program which in some manner aids an institution with a religious affiliation has consistently been rejected,” Hunt, 413 U.S. at 742, and that “th[e] Court has never held that religious institutions are disabled by the First Amendment from participating in publicly sponsored social welfare programs,” Bowen, 487 U.S. at 609; see also Mitchell, 530 U.S. at 826–29 (plurality opinion); HBCU Religious Restrictions, 43 Op. O.L.C. at 205–06. Instead, the “pervasively sectarian” limitation primarily aimed at pro- hibiting religious uses. Some religious institutions could be trusted to use funds for secular purposes, the Court reasoned, yet it found “a risk that the Federal Constitution cannot qualify as compelling in the face of the infringement of free exercise.” 142 S. Ct. at 1998 (cleaned up). 12  Constitutionality of Religious Restrictions on the Use of Federal Funds direct government funding, even if it is designated for specific secular purposes, may nonetheless advance [a] pervasively sectarian institution’s ‘religious mission.’” Bowen, 487 U.S. at 610 (emphasis added). Because money is fungible, in other words, granting government funding directly to a “pervasively sectarian” institution—as opposed to merely a religiously affiliated organization—risked having the “primary effect of advancing religion.” Id. at 609–10. The “proscription against ‘funding a specifically religious activity in an otherwise substantially secular setting’” likewise aimed to avoid advancing religion. Id. at 613 (alteration accepted) (quot- ing Hunt, 413 U.S. at 743). c. A third line of cases purported to distinguish between direct and indi- rect funding to religious organizations. The Supreme Court emphasized the “special Establishment Clause dangers where the government makes direct money payments to sectarian institutions.” Rosenberger, 515 U.S. at 842 (emphasis added); see also Bowen, 487 U.S. at 610; Hunt, 413 U.S. at 743. This was informed by a baseline that “[t]he Establishment Clause . . . prevents a State from enacting laws that have the ‘purpose’ or ‘effect’ of advancing or inhibiting religion.” Zelman, 536 U.S. at 648–49 (citation omitted). To evaluate whether the government act had a forbidden purpose or effect, the Court drew a distinction between “government programs that provide aid directly to religious [institutions]” and “programs of true private choice, in which government aid reaches religious [institutions] only as a result of the genuine and independent choices of private individ- uals.” Id. at 649. In these “indirect” cases, the Supreme Court explained that if “a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genu- ine and independent private choice,” then “the program is not readily subject to challenge under the Establishment Clause.” Id. at 652. That was because “[t]he incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government.” Id. The direct-indirect distinction, then, was thought to reflect both the first and second elements of Lemon, as captured by the endorsement test. See id. at 669–70 13  50 Op. O.L.C. __ (Aug. 25, 2026) (O’Connor, J., concurring) (arguing that the direct-indirect cases “focus[] on a narrow question related to the Lemon test” and merely represent “a refinement” of that test). For this reason, the Supreme Court observed that “[a]ny Establishment Clause objection to the scholarship program” in Espinoza was “particularly unavailing because the government support makes its way to religious schools only as a result of Montanans independently choosing to spend their scholarships at such schools.” 140 S. Ct. at 2254. And in Carson, the Court similarly observed that “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.” 142 S. Ct. at 1997. These cases made clear that if funding reached a religious institution through the choices of independent private actors, then the Establishment Clause did not care how the funding was ultimately used. 3. For many years, Lemon was the focus of fierce criticism for its “short- comings,” which “present[ed] particularly daunting problems.” Am. Legion, 139 S. Ct. at 2080–81 (plurality opinion); see also County of Allegheny, 492 U.S. at 655–56 (Kennedy, J., concurring in the judgment in part and dissenting in part) (observing in 1989 that “[p]ersuasive criti- cism of Lemon has emerged” and collecting cases). A growing consensus found that Lemon “bypassed any inquiry into the Clause’s original mean- ing,” “ignored longstanding precedents,” and “produced only chaos.” Shurtleff, 142 S. Ct. at 1604 (Gorsuch, J., concurring in the judgment). And for decades, Supreme Court justices had cast doubt on whether “the Lemon test [fit] in the larger scheme of Establishment Clause jurispru- dence” at all. Van Orden v. Perry, 545 U.S. 677, 686 (2005) (plurality opinion). But “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried,” Lemon continued to “stalk[] [the Court’s] Establishment Clause jurisprudence.” Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J., concurring in the judgment); see also id. at 398–99 (counting opinions from justices repudiating Lemon). Thus, while we were forced to conclude in 2019 that, under existing precedent, “antiestablishment interests might justify a use-based religious-funding 14  Constitutionality of Religious Restrictions on the Use of Federal Funds restriction,” HBCU Religious Restrictions, 43 Op. O.L.C. at 208, we nevertheless observed in 2021 that “the Court ha[d] retreated” from “Lemon-based analysis” in the contexts of religious displays and legisla- tive prayers, validating a “historical approach” that is “more consistent with the Nation’s constitutional tradition and the original meaning of the Establishment Clause,” Religious Seasonal Decorations in Federal Gov- ernment Buildings, 45 Op. O.L.C. __, at *11 (Jan. 15, 2021) (“Seasonal Decorations”). In 2022, the Court drove a stake through Lemon’s heart. The Supreme Court in Kennedy definitively rejected Lemon for representing an “ahis- torical approach to the Establishment Clause” that the “Court long ago abandoned,” along with “its endorsement test offshoot.” Kennedy, 142 S. Ct. at 2427. Kennedy’s conclusive abrogation of Lemon produced a “sea change” in Establishment Clause jurisprudence. Nathan v. Alamo Heights Indep. Sch. Dist., 173 F.4th 576, 591 (5th Cir. 2026) (en banc). Even if the Supreme Court has not overruled each of Lemon’s progeny “by name,” we cannot blindly adhere to faulty precedent when its entire ratio decidendi has been eviscerated. Id. Any remaining “doubt” we had about the status of these and other Lemon-era precedents, see HBCU Religious Restrictions, 43 Op. O.L.C. at 205, was resolved by Kennedy, 142 S. Ct. at 2427. B. The Supreme Court has now “instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understand- ings’” from the time the First Amendment was ratified. Id. at 2428 (quoting Town of Greece v. Galloway, 572 U.S. 565, 576 (2014)). This approach requires an “analysis focused on original meaning and history,” id., be- cause looking to history can “reveal[] . . . the contemporaneous under- standing of ” the Establishment Clause, Lynch v. Donnelly, 465 U.S. 668, 673–74 (1984) (examining “an unbroken history of official acknowledg- ment by all three branches of government of the role of religion in American life from at least 1789”). It is to this historically based analysis that we now turn. To identify the historical practices and understandings relevant to the Establishment Clause, the Supreme Court has pointed us toward the “hallmarks of religious establishments the framers sought to prohibit 15  50 Op. O.L.C. __ (Aug. 25, 2026) when they adopted the First Amendment.” Kennedy, 142 S. Ct. at 2429 & n.5; see also Shurtleff, 142 S. Ct. at 1609–10 (Gorsuch, J., concurring in the judgment) (identifying the hallmarks of a religious establishment). 11 This Office has long looked to such historical practices to inform its views of the Religion Clauses, and criticized the Lemon-era failure to “engage in any serious analysis of the historical understanding of estab- lishment.” Memorandum for the Files, from Attorney-Adviser, Office of Legal Counsel, Re: Historical Understanding of Religion Clauses at 36 (Mar. 17, 2004) (“File Memorandum”). As this Office has explained, “the concept of a national ‘establishment’ at the time of the Founding did not refer to any government action touching religion, but rather to a distinc- tive form of support, enforcement, and control of religious faith.” Seasonal Decorations at *8. “The state religious establishments that the Founders sought to protect from federal interference” often “involve