Immigration and religion have long been points of contention in the American political landscape, and since the Trump era these tensions have only intensified. For instance, during Trump’s administration, rhetoric around building a wall along the U.S.-Mexico border ran rampant, ¹ Open footnote #1 1 Footnote #1 content: See Nick Miroff & Josh Dawsey, ‘Take the Land’: President Trump Wants a Border Wall. He Wants It Black. And He Wants It by Election Day, WASH. POST (Aug. 27, 2019), https://perma.cc/DR9C-MB25. close and Trump passed the infamous Muslim travel ban. ² Open footnote #2 2 Footnote #2 content: See Jill E. Family, The Executive Power of Political Emergency: The Travel Ban, 87 UMKC L. REV. 611, 611-18 (2019). close In the last couple of years, divisiveness about immigration has risen as the number of migrants entering the United States has increased. In 2023, U.S. Border Patrol had 2,475,669 encounters at the southwest border, and in 2024 there were 2,135,005. ³ Open footnote #3 3 Footnote #3 content: Southwest Land Border Encounters, U.S. CUSTOMS & BORDER PROT., https://perma.cc/58UB-G2BF (Feb. 18, 2025). close As more migrants flee to the United States, federal, state, and local government resources are spread increasingly thin with the task of providing temporary food, shelter, housing, and basic medical care.

Many faith-based organizations provide secular community services that supplement state goals, acting as hospitals, shelters, food kitchens, education centers, and serving a myriad of other functions in their communities. Nationwide religious non-profits such as Catholic Charities USA, The Jewish Federations of North America, and The Salvation Army use federal funding to help individuals in these capacities. Many of these organizations are under fire for serving undocumented migrants, and politicians are calling for the release of their documents and to eliminate or restrict their funding. ⁴ Open footnote #4 4 Footnote #4 content: See Jack Jenkins, GOP Lawmakers Once Praised Catholic Charities. Now They Want To Defund the Group., N.Y. TIMES (Jul. 28, 2023), https://perma.cc/SK38-LDQ7; Jack Jenkins, Conservative PAC Sues Biden Administration, Targeting Nuns, Liberal Catholics in Records Request, RELIGION NEWS SERV. (Feb. 10, 2022), https://perma.cc/XZ8V-FMJE; Suzanne Gamboa, Catholic Immigrant Shelter Battles Texas AG, Who Wants To Shut It Down, NBC NEWS (Feb. 21, 2024), https://perma.cc/43BD-VCLJ close Republicans on the U.S. House of Representatives Committee on the Judiciary even wrote to the U.S. Department of Homeland Security (DHS) that “[a] major cause of this [immigration] crisis is the incentive created by non-governmental organizations (NGOs) using DHS grant funding through the Federal Emergency Management Agency (FEMA).” However, eliminating or conditioning funding of religious nonprofits because they serve undocumented individuals could be considered hostility toward religion and grounds for a Free Exercise Clause challenge. In many faiths, involvement in one’s community, giving charitable donations, and helping those in need without discrimination are foundational beliefs that guide people’s daily lives, even if the result is secular community service.

I argue that although nondiscriminatory humanitarian aid counts as the free exercise of faith-based organizations’ religious beliefs, these organizations would fail to protect their federal funding on free exercise grounds. Losing federal funding is an economic burden that does not rise to the level of a “substantial burden.” As an alternative to completely cutting funding, it would be constitutional for the federal government to provide conditional funding, so long as the conditions do not coerce the organizations into relinquishing their religious freedom. In Part I, I explain how federal funding to religious non-profits is permissible under the Establishment Clause. I also argue that helping undocumented individuals and families based on clearly demonstrated religious beliefs qualifies as free exercise of religion under the First Amendment. In Part II, I explain the contours of substantial burden analysis and why the economic burden faith-based organizations would experience if they lost federal funding does not qualify as substantial. In Part III, I argue that conditional government funding to religious nonprofits is constitutional, but only if the conditions are sufficiently tailored to the program’s purpose and do not coerce the organizations into relinquishing their religious freedom. In Part IV, I discuss how eliminating funding would survive a Religious Freedom Restoration Act (RFRA) challenge and how proposed federal legislation would also survive Free Exercise Clause challenges. To conclude, I predict how the U.S. Supreme Court might rule on this issue if it were to come before the Court.

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