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Key Takeaways
- Harvard University is set to borrow $675 million through taxpayer-subsidized bonds to build a new economics building, with a stipulation prohibiting any religious worship or prayer inside.
- This restriction has raised legal concerns, as experts argue it may violate the First Amendment's Free Exercise Clause by discriminating against religious activities when public funds are involved.
- Critics, including legal scholars, emphasize that the condition could be unconstitutional based on prior Supreme Court rulings, such as Carson v. Makin, which protects religious use of otherwise available funds.
Harvard University is borrowing $675 million in taxpayer-subsidized bonds to construct a new economics building on the condition that no religious worship or prayer is allowed inside it.
These funds come from the Massachusetts Development Finance Agency, a state agency that issues tax-exempt bonds on behalf of universities, hospitals, and other nonprofit institutions, according to The Washington Free Beacon.
To qualify for the financing, Harvard agreed that no part of the Project, so long as it is owned or controlled by the Institution, “shall be used for any sectarian instruction or as a place of religious worship,” according to the finance agency’s official statement obtained by the Free Beacon.
The restriction has sparked significant legal concerns.
Ilya Shapiro, the director of constitutional studies at the Manhattan Institute, told The College Fix, “The Supreme Court has made clear that if states make programs or benefits available to all, they can’t disadvantage religious activity or status.”
“There are quite obvious legal issues here, particularly because it involves a state regulation that disfavors religion,” Shapiro added.
When asked about first impressions of the case, Shapiro said, “Shocked is an understatement.”
“It’s an interesting thought experiment, but university buildings that can’t have any gatherings have no purpose,” Shapiro added.
When asked about the Establishment and Free Exercise Clauses of the Constitution, Shapiro said, “The Supreme Court has held that there’s a difference between state funding or establishment of religion and making programs available to all, including religious institutions, on equal terms.”
“Here, Harvard is a private school without a religious mission (unlike at its founding), so any Establishment Clause concerns are extremely attenuated,” Shapiro said.
When asked what Harvard should do in this case, Shapiro suggested it “Challenge the restrictions themselves.”
“Tell them that we’re not building a religious institution and that prohibiting religious activity as a condition of receiving the benefit of a public regulation is unconstitutional,” he said.
Notre Dame Law School Professor Nicole Garnett similarly criticized the stipulation.
She said the building’s stipulation has “got to be unconstitutional,” as attaching a condition to public funds that bars religious exercise would violates the Supreme Court’s decision in Carson v. Makin, according to the Free Beacon.
Carson v. Makin is a case decided by the United States Supreme Court in 2022, holding that a “nonsectarian requirement for otherwise generally available” funds violates the First Amendment’s Free Exercise Clause.
This means that if funds are available for secular purposes, they must not exclude using the funds for religious purposes. Doing so would violate the Constitution and the right to freedom of religion.
The Supreme Court further held that actions “must advance interests of the highest order and must be narrowly tailored in pursuit of those interests.” This requires that institutions using government funds use the least restrictive means for religious practices.
The consensus of the Court was that if laws “exclude some members of the community from an otherwise generally available public benefit because of their religious exercise,” that constitutes “discrimination against religion.”
Garnett also said that it “raises bizarre enforcement challenges.”
“Maybe Harvard would reply that its Divinity School isn’t sectarian,” Garnett added.
Neither Harvard University nor the Massachusetts Development Finance Agency responded to multiple requests for comment regarding the rationale for restricting religious practices in the building and how the prohibition will be enforced.
The new building is set to open in December 2027.
Economics Professor Edward Glaeser told The Harvard Crimson, “We want Economics to be the largest concentration at Harvard for the next 200 years.”
“And we hope that this building will help to make that happen,” he said.
