These States Are Leading The Way To Restore Religious Freedom

This piece is part of MI x DW, a collaboration that brings Daily Wire readers exclusive commentary and research from the Manhattan Institute’s world-class team of scholars.

Over the past decade, the Supreme Court has repeatedly ruled that the First Amendment prohibits excluding religious institutions from public benefit programs. Yet some states have resisted this clear constitutional mandate. The Court has agreed to hear yet another case involving rules that allegedly discriminate against religious schools seeking to participate in Colorado’s universal pre-K program.

Other states, fortunately, are embracing the First Amendment, revising their laws and regulations to put religious institutions on equal footing with other private entities. In recent months, Oklahoma, Florida, and Iowa have taken meaningful legislative or administrative steps to dismantle unconstitutional laws and regulations. These states should be applauded for recognizing that they cannot treat religious Americans as second-class participants in public life.

For years, courts misinterpreted the Constitution’s Establishment Clause as requiring the exclusion of religious institutions from government funding programs, even when those programs extended funding to virtually every other private organization. As a result, federal and state laws became littered with “sectarian” provisions expressly excluding religious individuals and institutions from otherwise generally available public benefits.

But since the turn of the century, the Supreme Court has steadily corrected course. It first made clear that government may include religious institutions in public programs on equal footing with other private entities, then ultimately held that the government may not exclude religious institutions and religious conduct from public programs open to everyone else.

As the Court explained in its 2022 decision in Carson v. Makin, “a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” The Court further emphasized that “[a] State need not subsidize private education . . . but once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

The problem is that the Court’s new doctrine did not, by itself, force governments to revisit the statutes and regulations that entrenched these exclusions. As we have catalogued, hundreds of laws across the country continue to keep religious institutions out of otherwise generally available public programs. Moreover, when plaintiffs affected by these laws have sued, government officials often have attempted to evade their constitutional obligations. In some instances, states have imposed new conditions on public funding programs designed to create fresh obstacles for religious institutions seeking to participate on equal terms.

By contrast, some states have taken major steps to conform their laws to the First Amendment. Oklahoma has emerged as a leader in this effort. In 2023, the state enacted legislation that treated the sectarian exclusion of religious institutions from government benefits as a substantial burden on religious liberty. Then, in 2025, Governor Kevin Stitt issued an executive order directing state agencies to identify and eliminate laws, regulations, and policies that exclude religious individuals and institutions from public programs, funds, and benefits. The order specifically instructed agencies to review state rules in light of the Supreme Court’s modern Free Exercise decisions. Most recently, Oklahoma repealed several “sectarian” funding restrictions embedded in its law, including provisions barring religious organizations from participating in programs administered by the Oklahoma Historical Society and Arts Council.

Oklahoma is not alone. Last month, Florida Attorney General James Uthmeier issued a formal opinion concluding that state laws excluding religious institutions from public benefits violate the First Amendment. He announced that his office would no longer enforce such provisions.

Most recently, Iowa Governor Kim Reynolds signed legislation repealing multiple sectarian statutory provisions. Among other things, the law removed longstanding anti-religious restrictions embedded throughout Iowa’s education code, which barred religious institutions from participating in programs or required them to refrain from religious conduct in order to participate.

These recent developments may signal the beginning of a far healthier constitutional trend—one that does not require wave after wave of costly litigation simply to secure religious liberty for Americans. As Judge Daniel Traynor observed in 2024, “Time and again the First Amendment rights of American citizens have been the subject of litigation. . . . Organizations must continually sue to keep the . . . government from infringing on basic and well-settled rights to freedom of religion.”

Rather than forcing religious individuals and institutions to spend years vindicating rights that the Supreme Court has already recognized, states should take seriously their independent obligation to bring their own laws into compliance with the Constitution. Thankfully, Oklahoma, Florida, and Iowa have begun to do exactly that.

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This is republished with permission from the Manhattan Institute’s City Journal. The original can be found here.

Michael A. Helfand is the Brenden Mann Foundation Chair in Law and Religion at Pepperdine Caruso School of Law, Visiting Professor at Yale Law School, senior legal advisor to the Orthodox Union’s Teach Coalition, and senior fellow at the Shalom Hartman Institute. Nicole Stelle Garnett is the John P. Murphy Foundation Professor of Law at the University of Notre Dame and a faculty fellow of the Religious Liberty Initiative.