In recent years, state and federal courts have repeatedly been faced with the questions of whether governmental grants and programs can provide money to churches, seminaries, and other religious institutions without running afoul of the First Amendment or state constitutions, and, conversely, whether withholding such funds constitutes prohibited religious discrimination. Michael Helfand, examining the sometimes-contradictory rulings on the matter, sees—and applauds—an emerging tendency for the Supreme Court to allow, or even require, religious institutions to be eligible for government largess:
[J]ust this past Thursday, the New Jersey supreme court punted on a . . . case addressing New Jersey’s “Building Our Future Bond Act,” which provided funds for capital-improvement projects for institutions of higher education. Among other institutions, both Beth Medrash Govoha (BMG) in Lakewood and Princeton Theological Seminary received funds under this program—approximately $10.6 million and $650,000 respectively. . . . At issue for the court was whether the funds would ultimately be used for conduct and purposes that it could describe as wholly religious. . . . Thus, while BMG clearly expressed that its programs included significant amounts of religious study, it also highlighted that less than 5 percent of its students pursue [rabbinic] ordination. . . .
Ultimately, the [U.S.] Supreme Court has allowed for the exclusion of religious institutions from government funding in the narrow set of cases where [providing such funding] would put the state in the position of using tax dollars to support the ministry. But veering away from those narrow historical confines, the Supreme Court has emphasized that excluding a religious institution from “benefits for which it is otherwise qualified” is “odious to our Constitution.”
And maybe, notwithstanding all this constitutional messiness, that approach—prohibiting religious discrimination in government funding except in the narrowest of circumstances—provides the best option for courts going forward. Accordingly, . . . maybe once the state is granting funding for higher education, then it should not be able to exclude a subset of institutions of higher education simply because they primarily pursue the rigorous study of religion.
At bottom, when adjudicating claims of religious discrimination in government funding, courts are thrust into a clash of values between [the] non-establishment [clause] and neutrality. But in parsing cases that fall uncomfortably between the two, courts might be wise to embrace an approach that defaults to putting religious and secular institutions on equal footing. No doubt, there may be hazards in adopting such an approach. But the hazards of tolerating the singling out of religious individuals and institutions for unequal treatment seem far greater.