Clarifying Free Exercise for Religious Schools – Part 1

Earlier articles (here and here) reviewed the present condition of church/state relations in America, and the direction of constitutional law favorable to religious freedom. This is in contrast to the restrictions of the strict separationist doctrine of the Everson v. Board of Education (1947) decision. Court decisions over the last decade have mitigated the strictness of the Everson decision. They allow government funding of religious organizations on the basis of the Free Exercise clause of the First Amendment, but in situations in which the dominant antidiscrimination sentiment in the country can support the claim that religious organizations are being unfairly treated by strict separation. The Trinity Lutheran Church v. Comer (2017) decision determined that a church school could not be denied a grant in a program of state aid for playground re-surfacing available to secular organizations. Espinoza v. Montana Department of Revenue (2020) determined that a state tax credit for educational expenses could not be denied for education at a religious school if it was also available for education at private secular schools. Carson v. Makin (2022) determined that the state of Maine could not deny tuition assistance to private religious schools if it extended tuition assistance to private secular schools.

In issues separate from educational funding, the Supreme Court upheld the constitutionality of the Peace Cross on public property in Bladensburg, Maryland in American Legion v. American Humanist Association (2019). This was the first time the court recognized the right of a cross to be on public property. In Fulton v. City of Philadelphia (2021), the court said that a Catholic foster care service must be allowed to follow its own religious standards in placing children only with opposite-sex, married parents. In Kennedy v. Bremerton School District (2022) the court determined that private prayer by a public school employee is protected by the Free Exercise and Free Speech clauses of the First Amendment.

What continues to cause problems in appeals to free exercise is the Employment Division v. Smith (1990) decision, which held that free exercise is no defense against “neutral, generally applicable law.” Recent research by the Manhattan Institute maintains that many state and local programs continue to discriminate against religious schools, although there is no basis for it given contemporary jurisprudence. State and local officials are applying the strict separationist doctrine prominent in the 1970s and 1980s.

St. Mary Catholic Parish v. Roy

In the case currently before the U.S. Supreme Court, St. Mary Catholic Virtue School in Littleton, Colorado wants to participate in a state program that provides funding for pre-kindergarten education (pre-K). The program, Universal Preschool Program (UPK), purports to be “universal.” But Colorado wants to require the school to give no preference to Catholic students, to give up any restriction on hiring or retaining LGBT staff and admit children who (at the young age of 4) identify as LGBT or have parents who identify as LGBT. These requirements accompanied the usual antidiscrimination requirements (race, color, religion, sex, etc.). Additionally, accommodation for transgender identifying children (again at the young age of 4) was required in pronoun and bathroom policies.

Finally, the UPK program gave preference to students in particular categories, specifically “gender-nonconforming children,” “children of color from historically underserved areas,” and children from “the LGBT community.” The Catholic Archdiocese of Denver recommended that Catholic schools not participate in the UPK program, as enrolling children identifying as LGBT would likely “lead to intractable conflicts,” but still recommended the UPK program for children from “low-income families.” St. Mary and St. Bernadette parishes, both in the Archdiocese of Denver sued the State of Colorado in federal district court, after being denied exemption from the state’s pro-LGBT requirements, claiming violation of the Free Exercise Clause of the First Amendment.

The district court judge found in favor of the state, holding that the LGBT requirements were a “strongly embraced public value.” The parishes appealed to the Tenth Circuit Court, which gave relief from the requirement to open hiring and retention policies for LGBT identifying persons (this requirement likely violated the ministerial exception for religious teachers), but kept the requirement to admit LGBT identifying students, or students with LGBT identifying parents. Preference for Catholic students was allowed by the 10^th Circuit, thus eliminating that requirement. But as the LGBT admissions policy remained, St. Mary Parish appealed to the U.S. Supreme Court.  

The appeal noted that while the UPK program extols the equal opportunity to the pre-K education it provides funds for, and uses common (for today) antidiscrimination categories of “race, religious affiliation, sexual orientation, gender identity, income level, or disability,” it in fact can be used by preschools that serve only “children of color,” (and thus allows, in this case, racial discrimination), “gender-nonconforming children,” “the LGBTQ community,” “low-income families,” and “children with disabilities.” But it excludes Catholic preschools because they admit only children of parents “who support Catholic beliefs, including on sex and gender.”

Colorado’s rule thus lacks general applicability, and thus the case is out from under the Smith decision, and the strict scrutiny of the First Amendment applies. It also noted that the Archdiocese of Denver’s advice not to admit pre-K children who (again at the young age of 4) identify as LGBT was “well-founded,” since the Colorado Department of Early Childhood told the federal district court that abiding by Catholic religious beliefs regarding sex and “gender” constituted “discriminat[ion] against LGBTQ families and children.”  It might be observed here that the “gender identity” requirement seriously impinges on the free speech rights and safety of all students. Darren Patterson Christian Academy (discussed subsequently), which does admit LGBT identifying students was told that pronoun and bathroom policies must follow a child’s self-determined sex.

In a final brief to the Supreme Court, St. Mary Parish said that the Carson v. Makin decision should make clear that Colorado’s antidiscrimination requirement with religious schools is unconstitutional, since it held that “otherwise eligible schools” cannot be excluded from public benefit “on the basis of their religious exercise.” As already noted, Colorado’s rule carves out exemptions for other “specific communities,” so it thus lacks general applicability, and therefore the case is out from under the Smith decision, and the strict scrutiny of the First Amendment applies. It might be added that strict scrutiny also applies because the Fulton decision made religious exemptions mandatory if there are secular exemptions. Colorado has attempted (as Maine has also recently attempted) to hold that schools may not be discriminated against because of their religious status but may be discriminated against because of discriminatory practices. But the wording of the First Amendment and the Carson decision clearly say otherwise. Schools may not be discriminated against because of their religious practice.

Comments from the U.S. Conference of Catholic Bishops  

The U.S. Conference of Catholic Bishops (USCCB), in its brief to the Supreme Court to grant certiorari (appeal) to St. Mary’s case said that the court should deal with “a facially neutral statute that in practice denies Catholic preschools access to a state-run tuition assistance program solely because those schools adhere to Catholic doctrine about human sexuality.” It said that the Carson decision protects religious exercise, which St. Mary’s school policy clearly is, not just religious status.

In a final brief to the Supreme Court, the USCCB said that the decision of the Tenth Circuit, which allowed Catholic schools to prefer Catholic students, but required them to accept students identifying as LGBT or having parents identifying as LGBT “misapplied Carson, Espinoza, and Trinity Lutheran. Colorado has, by its own admission, disqualified Catholic preschools from participation in the State’s universal preschool program solely because of their adherence to Catholic doctrine.” This violates current court precedents, “which bar States from rebranding sincerely held religious beliefs as ‘discrimination’ in their efforts to impose a different, state-preferred orthodoxy.”

The USCCB also said, citing the reference to Espinoza in Carson v. Makin, that states may not require that funding of religious schools go only to support “the rough equivalent of a public education.” States cannot have requirements for state funding which are “neutral on their face,” but in practice “forbid religious exercise, according to Espinoza.” The Court’s “holding in Espinoza turned on the substance of free exercise protections, not on the presence or absence of magic words” (e.g., religious affiliation) and it “applies fully whether the prohibited discrimination is in an express provision” like Maine’s statute invalidated by the Carson decision “or in a facially neutral ‘reconceptualization of the public benefit.’” USCCB appealed to the Trinity Lutheran decision to say that the text of that decision “made clear that even ‘facial[ly] neutral’” laws could unconstitutionally “single out the religious for disfavored treatment.” It cited as an example Church of Lukumi Babalu Aye v. City of Hialeah (which involved a facially neutral law tailored only to prohibit the sacrificial practice of the Santeria religion).  

“To be sure, the laws at issue in Carson, Espinoza, and Trinity Lutheran explicitly targeted religion” … but as the Supreme Court asserted in Thomas v. Review Board of the Indiana Employment Security Division (1981) “[A] regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion.”

However, USCCB said, the Tenth Circuit did not follow this guidance from the Supreme Court, because it upheld a law which was “facially neutral” but discriminated against Catholic schools because of their “adherence to traditional religious beliefs about human sexuality.” The Colorado Anti-Discrimination Act (CADA) does what the court “warned against in Carson, ‘redefining’ sincerely held religious practice as discrimination and ‘exclud[ing] otherwise eligible schools on the basis of their religious exercise.’” USCCB said that the UPK program “excludes high-quality Catholic preschools” from the UPK program, which is “generally available … simply because those schools are putting into practice foundational Catholic doctrines by” as the Kennedy v. Bremerton decision said “liv[ing] out their faiths in daily life.”

USCCB warned that “if allowed to stand, the Tenth Circuit’s decision will embolden other states and municipalities to discriminate against religious adherents’ rights by enacting ostensibly neutral statutes that discriminate in fact.” USCCB pointed out that Maine has recently done this in response to its loss in Carson v. Makin, where the Supreme Court decided that the state cannot refuse to fund religious schools (if secular private schools are funded). Maine responded by enacting a law like Colorado’s that prohibited giving preference to families of a particular religious affiliation and requiring schools to have admissions open to LGBT students if they receive state aid.  This recently resulted in a case of a Catholic school being denied state aid.

“If this trend continues, it will impair the ability of Catholic organizations and other faith-based service providers to partner with state and local governments to serve the public. The resulting harm to the nation’s social support infrastructure would be immense. Catholic charitable organizations are a profound force for good. They provide excellent education, heal the sick, care for the vulnerable, and feed the hungry.” There should therefore be “clear instruction to courts across the country that religious organizations cannot be barred from participation in public life merely because they live out their sincerely held religious beliefs.”

Attacking religious education and social services with antidiscrimination law and policy will be devastating for society. “Research in six cities of varying demographics has shown that faith-inspired organizations account for 40 percent of social safety net spending.” (p. 19-20) USCCB rehearsed the enormous contributions of Catholic social services, and the enormous gap that would be left in their absence. “If state legislators bar the billions of dollars that Catholic and other faith-based organizations contribute, there is no mechanism to make up the difference.” (p. 24-26)

“Trinity Lutheran and Espinoza make clear that religious entities cannot be excluded from generally available public programs based on religious status. Carson then confirmed that this protection extends to religious exercise, not merely inward belief. In Carson, that exercise was teaching a Catholic curriculum. Here, it is St. Mary’s implementation of an admissions process consistent with its Catholic beliefs on human sexuality for the ultimate purpose of facilitating an environment where the school can teach its faith with integrity. Carson’s logic prohibits the State from conditioning participation in the universal preschool program on the requirement that St. Mary abandon its free exercise of religion.”

Comments from other concerned organizations will follow in a subsequent article.

It can be viewed here.