For more than two centuries, one principle has occupied a special place in American political culture: government should neither establish religion nor prevent people from practicing it.
That balance has never been simple. Americans have fought over school prayer, religious displays, public funding, abortion, religious exemptions and countless other issues. Yet one distinction has traditionally been relatively straightforward: religious organizations may participate in public programs, but taxpayers should not be forced to finance prayer, worship or proselytizing.
The Trump administration’s Justice Department is now challenging that distinction.
On August 25, 2026, the Department of Justice’s Office of Legal Counsel issued a sweeping legal opinion arguing that restrictions preventing religious organizations from using generally available federal funding for explicitly religious purposes are presumptively unconstitutional.
This is not merely another dispute over whether a church can receive the same government benefit as a secular organization. The argument goes much further. Under the Justice Department’s reasoning, a religious organization receiving taxpayer money could have a constitutional right to integrate religion directly into the federally funded activity itself.
If this interpretation becomes government policy and survives legal challenges, the wall separating church and state in America could become substantially thinner.
Your taxes could pay for religious activity
The controversy centers on federal programs administered by the Department of Health and Human Services. They include child care, welfare services, substance-abuse treatment and other programs delivered partly through private organizations.
Religious organizations can already participate in many government-funded programs. The central question is what they can do with taxpayers’ money once they receive it.
Existing safeguards have generally distinguished between providing a public service and conducting explicitly religious activity. A religious organization might operate a federally funded social program, for example, while keeping worship, religious instruction or proselytizing separate from the government-funded service.
The Justice Department argues that such restrictions can themselves violate the Constitution.
Its Office of Legal Counsel concluded that restrictions based on the anticipated religious use of generally available federal funding discriminate against religious providers. According to the opinion, these restrictions are presumptively unconstitutional under the First Amendment’s Free Exercise Clause.
The implications are enormous.
Taxpayers could increasingly find themselves financing programs in which religious teaching is not merely incidental but integrated into the publicly funded service.
A taxpayer-funded soup kitchen could include prayer
The Justice Department uses surprisingly concrete examples.
Imagine a church operating a soup kitchen with federal financial support. Existing rules can require the organization to separate explicitly religious activities from the taxpayer-funded meal service.
The new legal reasoning challenges precisely that kind of separation.
The Office of Legal Counsel argues that religious organizations should not have to segregate or divide their religious activities merely to participate in generally available federal programs. The Freedom From Religion Foundation warns that this could allow communal prayer to become part of a federally funded meal service rather than something conducted separately.
For the people running the church, prayer may be inseparable from helping those in need.
For the taxpayer, however, another question arises.
Why should an atheist, Muslim, Christian, Jew, Hindu or anyone else be compelled to finance somebody else’s religious message?
Faith could enter taxpayer-funded science lessons
Perhaps the most extraordinary example involves science education.
The Justice Department argues that if the government creates a generally available STEM education program, religious providers cannot necessarily be required to remove their religious perspective from the instruction.
The opinion explicitly contemplates religious providers integrating faith into STEM education, including teaching about the relationship between faith and science or even a theological basis for mathematics.
Consider what that means.
The government would not simply be allowing religious schools to exist. Nobody seriously disputes their right to do so. Nor would it merely be providing some neutral benefit available to religious and secular institutions alike.
Taxpayers could potentially finance educational programs in which theology becomes integrated into the instruction.
An atheist could therefore help pay for Christian teaching. A Christian could help pay for Islamic teaching. A Muslim could help finance Jewish religious instruction. Everyone could potentially subsidize beliefs they regard as completely false.
That is exactly the problem separation of church and state was supposed to avoid.
Religious freedom does not require taxpayers to pay
Religious freedom is fundamental.
A Christian should be able to pray. A Muslim should be able to attend a mosque. A Jew should be able to observe Judaism. An atheist should be able to reject all of those beliefs.
The government should protect those freedoms.
But protecting someone’s right to preach is not the same thing as paying for the preaching.
This distinction is crucial. If the government prohibited a church from praying with its own money, that would represent an extraordinary violation of religious liberty. If the government says federal money provided for a social service cannot finance proselytizing, the situation is fundamentally different.
The organization remains free to preach.
It simply has to finance the preaching itself.
The Justice Department sees discrimination
The Trump administration approaches the issue from almost the opposite direction.
Its argument draws heavily on a series of Supreme Court decisions strengthening protections for religious institutions participating in generally available public-benefit programs.
In Trinity Lutheran v. Comer, the Supreme Court held that Missouri could not exclude a church from a generally available grant program simply because it was a church. Espinoza v. Montana Department of Revenue similarly rejected exclusion of religious schools from a scholarship program because of their religious character. Carson v. Makin further expanded constitutional protection for religious schools participating in tuition-assistance programs.
These cases established an important principle: government cannot simply tell an otherwise eligible institution that it is disqualified because it is religious.
The new Justice Department opinion pushes that principle further.
It argues that discrimination can occur not only when government excludes an organization because of what it is, but also when government restricts how federal money may be used because the intended use is religious.
That is the constitutional revolution hidden inside what might initially sound like an obscure dispute over grant regulations.
Equal access is not the same as taxpayer-funded religion
There is an important distinction between religious equality and government sponsorship.
Suppose a city operates a program providing grants to repair playground surfaces. A church that operates a public playground should not necessarily be excluded merely because it is religious.
That is equal treatment.
Now imagine the government gives the church money to provide addiction treatment, and the church uses that money to tell vulnerable participants that accepting a particular religion is part of their recovery.
That raises a very different constitutional and ethical problem.
The first situation prevents discrimination against religious organizations.
The second risks forcing taxpayers to subsidize religious persuasion.
Conflating the two makes the concept of religious neutrality increasingly meaningless.
Vulnerable people could be affected most
The consequences would not be confined to abstract constitutional arguments.
Many federal social programs serve people at particularly vulnerable moments in their lives. They may be homeless, addicted to drugs, unable to afford food, struggling with mental illness or trying to find emergency shelter.
If religious organizations increasingly integrate explicitly religious activities into federally financed services, recipients may encounter religious messages precisely when they have few alternatives.
The Freedom From Religion Foundation has strongly criticized the Justice Department opinion for this reason. It argues that people seeking food, shelter, child care or addiction treatment should not have to navigate taxpayer-funded religious exercises while receiving publicly supported assistance.
The issue therefore concerns not only taxpayers but beneficiaries.
Someone needing food should not have to wonder whether declining prayer could affect the help they receive.
America has been moving in this direction for years
The August 25 opinion did not appear from nowhere.
The Supreme Court has steadily expanded constitutional protections for religious organizations in disputes involving public benefits. At the same time, the Trump administration has made expanding religious liberty protections an explicit political priority.
In July, the Justice Department issued updated federal religious-liberty guidance reflecting recent Supreme Court decisions. It instructed agencies to protect religious organizations participating in federal contracting and grant programs and emphasized that they must be allowed to compete on equal terms with secular organizations.
Trump’s Religious Liberty Commission has gone further still. Among its recommendations is new Justice Department guidance clarifying the administration’s understanding of the Establishment Clause and the separation of church and state. It has also recommended repealing the Johnson Amendment, which restricts political campaign activity by tax-exempt organizations, including churches.
Individually, each development can be presented as a defense of religious liberty.
Together, they represent a substantial shift in how the relationship between religion and government is understood.
What happened to the Establishment Clause?
The First Amendment contains two religious protections that can sometimes pull in opposite directions.
Congress may not prohibit the free exercise of religion.
But Congress also may not make a law respecting an establishment of religion.
For decades, courts struggled to determine where one principle ends and the other begins. The government cannot discriminate against religion, but it also cannot establish or improperly promote religion.
The Justice Department’s new approach gives considerably greater weight to the Free Exercise Clause.
Its opinion argues that the Establishment Clause does not require the restrictions currently imposed on religious uses of federal money. Once those restrictions are no longer constitutionally required, the department argues, singling out religious uses becomes discrimination.
The logic is elegant.
Its consequences could be radical.
Separation never meant hostility toward religion
Supporters of stronger church-state separation are sometimes accused of wanting religion removed from American society.
That is a misunderstanding.
A secular government does not require a secular population.
People should be free to build churches, mosques, synagogues and temples. They should be free to preach, evangelize, pray, publish religious books and teach their children their beliefs. Religious organizations should enjoy the same fundamental legal protections as secular ones.
Separation of church and state protects those freedoms precisely because government does not decide which theology deserves official support.
The principle protects believers from other believers as much as it protects atheists.
A Baptist should not have to finance Catholic doctrine. A Catholic should not have to finance Islamic proselytizing. A Muslim should not have to finance evangelical Christianity. An atheist should not have to finance any of them.
Everyone remains free to support whichever religion they choose.
Or none at all.
Three pence still matters
James Madison understood this problem before the United States Constitution was even written.
In his 1785 Memorial and Remonstrance Against Religious Assessments, Madison opposed forcing citizens to contribute even a tiny amount toward religious establishments. The argument was not that religion should disappear. It was that religious belief should remain a matter of individual conscience rather than government financing.
That principle helped shape the American understanding of religious liberty.
More than two centuries later, the question has returned in a surprisingly literal form.
Should citizens be compelled through taxation to finance religious instruction, prayer and proselytizing simply because the organization conducting them also provides a government-funded service?
The Trump Justice Department increasingly appears to believe that preventing such spending may itself constitute unconstitutional discrimination.
The end of separation of church and state?
The title of this article is deliberately provocative.
The United States has not abolished the Establishment Clause. Churches have not become government agencies. Christianity has not formally become the state religion. Courts will continue deciding where constitutional boundaries lie, and the Justice Department’s legal opinion does not by itself rewrite the Constitution.
But something important is changing.
The traditional question was whether religious organizations should have equal access to generally available public programs.
The emerging question is much more consequential: once they receive taxpayers’ money, can the government require them to keep explicitly religious activity separate from the publicly funded service?
The Justice Department now argues that such restrictions are presumptively unconstitutional.
That could fundamentally reshape the relationship between religion and the American state.
Freedom of religion means that Americans should be free to worship whichever god they choose, preach whichever theology they believe and financially support whichever religious institution they wish.
Freedom of religion should also mean something else.
The freedom not to pay for somebody else’s religion.
