Can a religious-affiliated organization be denied public funding just for being religious?

Official title

Opinion addressing whether religious affiliated institutions must be given the same consideration as non-religious candidates for funding from governmental entities, if religious practices and ceremonies are not included in the proposal.”

Requester

Requested by The Honorable Kambrell Garvin, Member, South Carolina House of Representatives.

Plain-English summary

A state representative asked the Attorney General a question on behalf of a constituent, Bishop Eric Warren Davis, whose community development corporation planned a large economic-development project (redeveloping the Dutch Square Mall property in Columbia) as a public-private partnership. The CDC intended to seek funding from the City of Columbia, Richland County, and the State. The worry: could the organization be denied public money just because it is affiliated with a church? The framed question was whether religiously affiliated institutions must get the same consideration as non-religious applicants when the proposal itself does not include religious practices or ceremonies.

The office's answer is no, they cannot be denied on that basis. The Free Exercise Clause of the First Amendment forbids the government from singling out religious applicants for worse treatment. The office walked through a line of U.S. Supreme Court cases. Trinity Lutheran Church v. Comer held that Missouri could not refuse a church a generally available playground-resurfacing grant solely because it was a church. Espinoza v. Montana Department of Revenue and Carson v. Makin applied the same principle to tuition-aid programs, holding that disqualifying schools from a generally available benefit "solely because of their religious character" penalizes the free exercise of religion. The throughline: denying a generally available public benefit based only on religious identity triggers the strictest constitutional scrutiny and is almost never permissible.

The opinion is short and its conclusion is categorical: the Free Exercise Clause precludes discrimination against an applicant on the basis of religion. The office did not analyze any specific South Carolina funding program, the merits of the Dutch Square project, or the line between funding a religious organization's secular project and funding religious activity itself. It answered the constitutional question put to it and stopped.

What this means for you

Government entities that award grants or funding: The opinion indicates you cannot exclude an applicant from a generally available public funding program solely because it is religiously affiliated. Under the cited cases, that kind of religious-status exclusion is treated as a Free Exercise violation subject to strict scrutiny.

Faith-based and church-affiliated organizations: The opinion supports the position that you are entitled to the same consideration as a secular applicant for generally available public funds. It does not, however, address funding of religious activities themselves; the question presented assumed the proposal did not include religious practices or ceremonies.

Applicants and advisors structuring public-private projects: The opinion is a useful citation that religious affiliation alone is not a lawful ground for denial. It is the office's reading of federal constitutional law, not a ruling on any particular program's eligibility rules, which may carry their own neutral, generally applicable requirements.

Common questions

Can a city or county refuse to fund my project just because my organization is a church or church-affiliated?
According to this opinion, no. The Free Exercise Clause bars denying a generally available public benefit solely because of an applicant's religious character.

Does this mean any religious organization automatically gets public money?
No. The opinion addresses only discrimination based on religious status. It does not say religious applicants must win funding, and it does not address funding of religious practices; the question assumed the proposal contained none.

What Supreme Court cases support this?
The opinion relies on Trinity Lutheran Church v. Comer, Espinoza v. Montana Department of Revenue, and Carson v. Makin, along with earlier decisions like Church of the Lukumi Babalu Aye v. City of Hialeah.

Background and statutory framework

This opinion rests entirely on the First Amendment's Free Exercise Clause as interpreted by the U.S. Supreme Court, not on any South Carolina statute. The office opened with the principle from Gillette v. United States that the Free Exercise Clause "forbids subtle departures from neutrality," and Church of the Lukumi Babalu Aye v. City of Hialeah, which struck down an ordinance that targeted religious conduct despite appearing facially neutral.

The core of the analysis is the Supreme Court's religious-status funding trilogy. Trinity Lutheran Church of Columbia v. Comer held that denying a generally available benefit solely on account of religious identity imposes a penalty on free exercise justified only by a state interest "of the highest order," quoting McDaniel v. Paty and Wisconsin v. Yoder. Espinoza v. Montana Department of Revenue extended that protection against unequal treatment to the states through the Fourteenth Amendment, and Carson v. Makin reaffirmed that conditioning the availability of benefits on non-religious character "effectively penalizes the free exercise" of religion. From these, the office concluded that the Free Exercise Clause precludes discrimination in public funding on the basis of religion.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-whether-religious-affiliated-institutions-must-be-given-the-same-consideration-as-non-religious-candidates-for-funding-from-governmental-entities-if-religious-practices-and-ceremonies-are-not-included-in-the-proposal/
• Original PDF: https://www.scag.gov/media/ostob0zk/03654372.pdf

Original opinion text

$
Alan Wilson
attorney General

July 31,2024

The Honorable Kambrell H. Garvin, Member
South Carolina House of Representatives
District No. 77, P.O. Box 292434
Columbia, SC 29229

Dear Representative Garvin:
You seek our opinion regarding “whether religious affiliated institutions must be given
the same consideration as non-religious candidates for funding from governmental entities, if

religious practices and ceremonies are not included in the proposal.”

By way of background,

you provide the following information as stated in your letter:
I was recently contacted by my constituent, Bishop Eric Warren Davis, Pastor of
Word of God Church and Ministries International and Chairperson of Word of God
Community Development Corporation (CDC) located in Columbia.
Bishop Davis provided information regarding the CDC’s proposed multimilliondollar economic development project, I.S.E.E. Silicon South, which would provide
workforce development and tourism opportunities along the Broad River Road
Corridor by redeveloping the Dutch Square Mall property. From what I have
ascertained, the project is proposed to be a public-private partnership, and the CDC
intends to seek funding from governmental entities such as the City of Columbia,
Richland County, and the State of South Carolina. Bishop Davis has expressed
concern regarding whether an organization can be denied public funding based solely
on its affiliation with a religious institution.

LAW/ANALYSIS

The “Free Exercise Clause” of the federal Constitution “forbids subtle departures from
neutrality.” Gillette v. United States, 401 U.S. 437, 452 (1971). In Op. S.C. Att’y Gen., 2015
WL 1382880 (March 13, 2015), we observed that the “Free Exercise Clause protects against
government hostility which is masked, as well as overt.” As we stated in our 2015 opinion, “the
U.S. Supreme Court has found a municipal ordinance invalid under the Free Exercise Clause”

because the ordinance “targeted religious conduct, even where the ordinance appeared facially
neutral.” (referencing Church of the Lucumi Babalu Ave. Inc, v. City of Hialeah, 508 U.S. 520
(1993)).
!<2l;ger-!C. Dennis Bujldino

*

post Office 3o.x i 1549

» CoLv.uinA, SC 2921 i-1549

« Telephone- .'>j?-73-;-397O

.

,

-sm e S(;3-253-62gJ

The Honorable Kambrell H. Garvin
Page 2

July 31,2024

More recent decisions of the Supreme Court of the United States further reflect and
reinforce these fundamental principles. For example, in Trinity Luth. Church of Cola., Inc, v.
Comer, 582 U.S. 449 (2017), the Missouri Department of Natural Resources had a strict policy
against providing grants to any church or religious applicant for funds from Missouri’s Scrap
Tire program. Missouri explained to the Trinity Lutheran Church that its application for a grant
to install playground surfaces would be denied because the Missouri Constitution forbade
providing financial assistance directly to a church.

The United States Supreme Court rejected such an argument and ruled in favor of the

church. The Court found that the church could not be discriminated against on the basis of the
constitutional protection for Free Exercise of Religion. According to the Supreme Court,
[t]he Free Exercise Clause “protectfs] religious observers against unequal treatment,”
and subject to the strictest scrutiny laws that target the religious for “special
disabilities” based on their “religious status.” Church of Lukumi, Babalu Aye, Inc, v.
Hialeah. 508 U.S. 520, 533, 542, 113 S.Ct. 2217, 553, 542, 113 S.Ct. 2217, 124 L.
Ed.2d 472 (1993). . . . Applying this basic principle, this Court has repeatedly

confirmed that denying a generally available benefit solely on account of religious
identity imposes a penalty on the free exercise of religion that can be justified only by
a state interest “of the highest order.” McDaniel v. Paty, 435 U.S. 618, 628, 98 S.Ct.
1322, 55 L. Ed. 2d 593 (1978) (plurality opinion) (quoting Wisconsin v. Yoder, 406
U.S. 205, 215, 92 S.Ct. 1526, 32 L. Ed.2d 15 (1972).

582 U.S. at 458. The Court, in Trinity Lutheran, went on to observe that it is “unremarkable in
light of our prior decisions” to conclude that the Free Exercise Clause of the First Amendment

does not permit Missouri to “expressly discriminatef ] against otherwise eligible recipients by
disqualifying them from a public benefit solely because of their religious character.” See also
Espinoza v. Montana Dept, of Revenue, 140 S.Ct. 2246, 2254 (2020). [“The Free Exercise
Clause, which applies to the states under the Fourteenth Amendment, ‘protects religious
observers against unequal treatment. . .
(quoting Trinity Lutheran, 137 S.Ct. at 2021)].
And only recently, in Carson v. Makin, 596 U.S. 767, 780 (2022), the Supreme Court
reiterated these same principles, stating as follows:
[t]he “unremarkable” principles applied in Trinity Lutheran and Espinoza suffice to
resolve this case. Maine offers it citizens a benefit: tuition assistance payments for
any family whose school district does not provide a public secondary school.

Just
like the wide range of nonprofit organizations eligible to receive playground
resurfacing grants in Trinity Lutheran, a wise range of private schools are eligible to
receive Maine tuition assistance payments here. And like the daycare center in
Trinity Lutheran, BCS and Temple Academy are disqualified from this generally
available benefit “solely because of their religious character.” 582 U.S., at
, 137

S.Ct., at 2021. By “conditioning] the availability of benefits” in than manner,
Maine’s tuition assistance program - like the program in Trinity Lutheran -

The Honorable Kambrcll II. Garvin
Page 3
July 31,2024

“effectively penalizes the free exercise” of religion. Ibid, (quoting McDaniel. 435
U.S. at 626, 98 S.Ct. 1322 (plurality opinion)).

CONCLUSION

Under the authorities presented herein, the Free Exercise Clause of the United States
Constitution precludes such discrimination on the basis of religion.

Sinccpaly,

i

Robert D. Cook
Solicitor General