Harvard University agreed to ban prayer, worship, and religious instruction from its new Pritzker economics building as a condition of a $675 million tax-exempt bond deal with the state of Massachusetts, a restriction that leading law professors say flatly violates the Free Exercise Clause after a landmark 2022 Supreme Court ruling.
The condition, buried in a draft offering document tied to financing through the Massachusetts Development Finance Agency, requires 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 or in connection with any part of a program of a school or department of divinity for any religious denomination." Three constitutional law scholars contacted by the Washington Free Beacon said the provision cannot survive current Supreme Court precedent.
The state approved the Harvard bond offering in February at an amount up to $750 million. The actual offering came in at $675 million; the reason for the gap remains unclear. Neither Harvard's lawyers, the Massachusetts Development Finance Agency's lawyers, the chairman of Harvard's economics department, nor Penny Pritzker, the Obama-era Commerce Secretary and senior fellow of the Harvard Corporation who announced a $100 million gift for the building in 2021, responded to requests for comment before the Free Beacon's deadline.
The constitutional problem centers on Carson v. Makin, decided by the Supreme Court in 2022. That case held that states cannot exclude religious uses from public benefit programs available to secular institutions. The Harvard bond deal, which channels Massachusetts tax-exempt financing to a private university, fits squarely within the framework the Court addressed.
Nicole Stelle Garnett, the John P. Murphy Foundation Professor of Law at Notre Dame Law School and a senior fellow at the Manhattan Institute, did not mince words when asked about the restriction.
"That's got to be unconstitutional."
Garnett described the provision as "imposing a condition on the funds that discriminates against religious conduct/free exercise in violation of Carson v. Makin." She added that the restriction "raises bizarre enforcement challenges. Maybe Harvard would reply that its Divinity School isn't sectarian."
Philip Hamburger, the Maurice & Hilda Friedman Professor of Law at Columbia and CEO of the New Civil Liberties Alliance, agreed. Hamburger, who wrote the 2002 book Separation of Church and State, told the Free Beacon he might use the Harvard example in the religious liberty course he teaches.
"You are right that the breadth of the limit raises free exercise and even free speech questions."
Harvard already finds itself under mounting federal pressure on multiple fronts. The Pentagon recently severed military education programs with the university, signaling a broader review of all Ivy League ties.
Michael Helfand, who holds the Brenden Mann Foundation Chair in Law and Religion at Pepperdine Caruso School of Law and serves as a visiting professor at Yale Law School, offered the most detailed explanation of why the restriction is constitutionally dead on arrival. Helfand told the Free Beacon:
"These sorts of provisions exist across state and across contexts, previously enacted because of an old, but now abandoned, interpretation of the Establishment Clause. Indeed, under a recent series of Supreme Court cases over the past decade, this sort of provision is unconstitutional as it violates the Free Exercise Clause as a prohibited form of religious discrimination. A state cannot exclude an institution from participating in such a government program because it would like to use the funds, made available to other private institutions, toward some sort of religious use."
In other words, Massachusetts is still attaching a condition that the Supreme Court has already told states they cannot impose. The provision survives on inertia, not on law.
Garnett and Helfand maintain a website called religiousequality.net, which describes itself as "Exposing discriminatory laws and regulations to prevent the exclusion of religious organizations and activities from public programs." The Harvard bond condition is exactly the kind of relic that project was built to identify.
That Harvard, an institution that has faced sharp internal criticism over its own policy failures, would quietly accept such a condition rather than challenge it tells you something about institutional priorities.
Beyond the constitutional defect, the practical absurdities of the restriction are hard to ignore. Free Beacon writer Ira Stoll posed a series of pointed hypotheticals: "If an economist says a prayer before eating a meal at his desk, does that turn his office into a 'place of religious worship?' What if a Harvard Divinity School student wants to come talk with Ben Friedman, a Harvard economics professor who wrote a book titled Religion and The Rise of Capitalism. Is Professor Friedman supposed to bar the Harvard Divinity School student from the Pritzker building?"
The questions are not frivolous. The bond document's language sweeps broadly. It bars not just formal worship services but any use "in connection with any part of a program of a school or department of divinity for any religious denomination." A visiting lecture, a student meeting, a faculty seminar touching on theology, all potentially fall within the restriction's reach.
Meanwhile, Harvard already allows religious activity in buildings across its campus. Harvard Chabad holds Shabbat dinners inside Harvard Business School and Harvard Kennedy School buildings and hosts High Holiday services at Harvard Law School. A room adjacent to a shower in the Kennedy School basement functions as a Muslim prayer space. Harvard maintains a Hindu prayer space in the basement of a first-year dormitory building.
The Defense Department's decision to cut academic ties with Harvard starting in the 2026, 2027 school year only adds to the picture of an institution under siege from consequences of its own choices.
The "Project" covered by the bond offering is not limited to the new Pritzker economics building. The eighth and ninth floors of the Smith Center are also part of the financed project. The Smith Center's second floor already houses a Muslim prayer space. Whether the bond restriction would apply to that existing prayer space, or force Harvard to relocate it, is one of the open questions that neither the university nor the financing agency has addressed.
The broader pattern at Harvard is hard to miss. The university has weathered a cascade of reputational and institutional setbacks in recent years, from high-profile resignations linked to scandal to federal funding disputes. Each episode reveals the same tendency: an institution that prizes its elite status but stumbles repeatedly when basic accountability is on the line.
Penny Pritzker, who served as Commerce Secretary under President Obama and as a State Department envoy under President Biden, announced her $100 million gift for the economics building in 2021. She now sits as senior fellow of the Harvard Corporation, one of the university's two governing boards. Her silence on the prayer restriction is notable. So is the silence of Elie Tamer, chairman of the Harvard economics department.
What makes this episode especially telling is how easily the problem could have been avoided. The Supreme Court decided Carson v. Makin four years ago. The legal landscape shifted clearly. Yet Massachusetts kept the old restriction in its bond documents, and Harvard, with one of the largest law faculties in the world, signed off without objection.
Helfand's explanation is the most charitable one available: these provisions were "previously enacted because of an old, but now abandoned, interpretation of the Establishment Clause." They persist not because anyone has defended them on the merits but because bureaucratic language outlives the legal reasoning that created it.
That charitable reading, however, only goes so far. Harvard is not a small municipality that missed a memo. It employs armies of lawyers. It negotiated a $675 million bond deal. At every stage, someone reviewed the terms. And at every stage, someone decided the prayer ban was acceptable, or at least not worth fighting over.
The pattern of institutional inertia and avoidance at Harvard extends well beyond bond documents. But this particular case is unusually clean. The constitutional question is settled. The restriction discriminates against religious exercise. Three leading scholars from three different law schools agree. Nobody at Harvard will defend the provision on the record.
When a university that prides itself on intellectual rigor quietly accepts a condition that the Supreme Court has already declared unconstitutional, the problem isn't ignorance. It's indifference, and that's the kind of institutional rot no bond offering can fix.
