Earlier articles (here and here) focused on the substance of the St. Mary Parish v. Roy case, to be heard by the Supreme Court in its coming term, and briefs from religious organizations supporting St. Mary Parish. They particularly focused on the lack of general applicability in the policies established by the Colorado Department of Early Childhood, which denied funds from Colorado’s Universal Pre-School Program (UPK) to St. Mary Catholic Virtue School. This article will focus on additional considerations, and a related case which the court did not agree to hear (but could rule on) that were raised in two briefs.
The Problem of Discrimination against Religion
Seemingly because of the era of strict separationism introduced by the Everson v. Board of Education (1947) decision (mentioned at the beginning of Part 1 in this series of articles) the American public has become accustomed to the idea that religion may and must be discriminated against in the public square. Probably the school prayer decisions – Engle v. Vitale (1962) and Arington Township v. Schempp (1963) – contributed most forcefully to this impression. A brief by University of Virginia School of Law Professor Douglas Laycock, a leading scholar of religious liberty, the Christian Legal Society, and others pointed out in their brief that among the groups given preference (and thus exemption from the general rule of equality in the UPK program) was a “catch-all” category that included children who are “part of a specific community.” The director of the Colorado Department of Early Childhood testified in court that this provision would give preference to “gender non-conforming children,” “the LGBTQ community,” and “underserved children of color.” Yet Catholics are “part of a specific community” and historically have been discriminated against. But the Department refused their request for an exemption.
The amici (friends of the court) said that “this Court has been clear that the general applicability requirement aims to prevent devaluation of religious exercise.” In Church of Lukumi Babalu Aye v. Hialeah (1993), referenced in earlier articles, the City of Hialeah maintained that secular killings (butchering) of animals were “necessary,” but the animal sacrifices of the Santeria religion were “unnecessary.” The Supreme Court dismissed this argument: “[T]he ordinance’s test of necessity devalues religious reasons for killing by judging them to be of lesser import than nonreligious reasons.” The court observed that “necessity” was a term that was used to create “a mechanism for individualized” judgments about which desired exemptions were “worthy” and which weren’t (similar to the Fulton v. City of Philadelphia (2021) decision). But the amici maintained that religion can also be devalued though categorical exemptions that protect secular but not religious interests.
But it is the individualized exemptions at issue in this case, and in the Department’s hands, the “catch-all” preference creates a “mechanism for individualized exemptions” from the nondiscrimination mandate based on the decisionmaker’s judgment about which “specific communit[ies]” have historically suffered discrimination. The state is free to offer individualized exemptions from its general mandate of nondiscrimination, but if it does so, as Fulton emphasized, it cannot reject religious claims for exemption, such as that of St. Mary Parish.
The amici noted that “the court of appeals suggested it was enough that the UPK statute emphasizes the needs of disabled and low-income students and not of other groups … but that is no defense. The statute simply says what the state values. But the First Amendment says that the state cannot value religion less than comparable activities … The Department’s actions are permeated by devaluation of religious exercise compared to secular interests.”
The amici concluded that “Lukumi said that government may not apply a ‘necessity’ standard to allow some reasons for animal killings but reject a religious reason as unnecessary.” The Sherbert v. Verner (1963) decision, “as interpreted in [Employment Division v.] Smith, said that government may not apply a ‘good cause’ standard to permit some reasons for refusing available work but reject a religious reason … So too, Colorado may not apply a ‘historically disadvantaged group’ standard to permit consideration of some statutorily suspect features but then reject a religious reason for doing the same.”
The Smith Decision and Equal Protection as an Alternative to Free Exercise
As noted in earlier articles, a serious problem in appealing to the First Amendment in support of a religious liberty claim is the Employment Division v. Smith (1990) decision, which said that a claim of religious liberty is no defense against “neutral, generally applicable law.” But as also pointed out, Smith applies in cases of criminal law, but in questions of public benefit where there are individualized exemptions, the Sherbert v. Verner (1963) principle, which requires strict scrutiny in religious liberty cases, still stands.
Liberty Counsel, an Evangelical legal service organization proposed that in view the Smith decision, the Equal Protection clause of the Fourteenth Amendment might provide a surer way of reaching strict scrutiny than the Free Exercise clause of the First Amendment. Certainly Liberty Counsel believes that the Smith decision was wrong; any law which is “formally neutral” and “generally applicable” on its face is judged to be constitutional, not in violation of the First Amendment. The brief strongly attacked Smith’s devaluing of religious liberty, and seemed to urge the court to overturn it, despite the Supreme Court specifically declining to consider overturning Smith when it granted appeal. It was noted that current members of the court have described the Smith decision as “fundamentally wrong.” They (Neil Gorsuch, joined by Clarence Thomas and Samuel Alito) have said that Smith “failed to respect this Court’s precedents, was mistaken as a matter of the Constitution’s original public meaning, and has proven unworkable in practice.” Liberty Counsel said that “Smith’s ‘greatest failing’ is that it ‘shuts off all inquiry into a law’s historical and social context.’” But if we must live with Smith, at least for the time being, Liberty Counsel urged the court to use the Equal Protection clause to protect religious liberty in cases in which the law negatively impacts religious believers, and only religious believers. It also pointed out, citing Kelsey Curtis in the Harvard Journal of Law & Public Policy, that “‘courts often implicitly assume the neutrality of the challenged laws’ when in fact ‘those laws make inherent moral judgments, instantiate particular philosophies, and often verge on imposing secularism.’”
Although the court indicated that it will not consider overturning Smith, the two questions the court is considering are first, whether or not courts have “unfettered discretion” in finding secular exemptions which would prove lack of a law’s general applicability, or whether there must be categorical exemptions for identical secular conduct, and second, whether the strict scrutiny called for the Carson v. Makin (2020) decision displaces the Smith decision only when the government explicitly excludes religious groups and institutions from government benefits. As briefs reviewed in earlier articles argued, exact secular exemptions to the desired religious exemption or explicit exclusion of religious groups are not necessary to find a law not generally applicable. Liberty Counsel appears to maintain that the Colorado regulations are generally applicable, and therefore holds that equal protection offers a better argument for religious liberty,
Liberty Counsel pointed out that religion is considered a suspect category under Fourteenth Amendment law and jurisprudence and therefore may not be discriminated against in law. Also, as other amici noted, Liberty Counsel pointed out that the state’s requirement of accepting homosexuality and transgenderism burdens only religious schools, and that this was known when the law was enacted. Before enactment of the UPK program, the Colorado Department of Early Childhood convened a working group of religious social service organizations, which representatives from St. Mary Parish attended. They informed the department that the proposed sexual orientation and gender identity (SOGI) requirements of the UPK program could not be reconciled with the parish’s religious requirements. State officials thus “understood precisely whom the nondiscrimination requirement would exclude.” Yet they went ahead with the SOGI requirements unaltered.
This then can be a basis for an Equal Protection claim. Liberty Counsel said it is entirely possible for hostility to religious beliefs and practices to be present in the legislative process and lead to laws that in practice, if not formal intent, target religious belief and practice. “That concern is present here. In both purpose and effect, the nondiscrimination requirement excludes and marginalizes religious objectors and no one else,” Liberty Counsel said. It also observed that “critically, intent is not limited to desired consequences. ‘If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.’”
Thus, where courts can discern what Liberty Counsel called a “religious gerrymander,” burdening particular religious actors and no others, and where this result was foreseen as inevitable, strict scrutiny is triggered, and the law is likely unconstitutional under the Fourteenth Amendment, which is interpreted by the courts as prohibiting discrimination in law against suspect categories. Also, “strict scrutiny requires that the state ‘specifically identify an ‘actual problem’ in need of solving,’ and that the nondiscrimination requirement’s exclusionary operation ‘must be actually necessary to the solution.’”
“The State can identify no widespread discrimination against preschool applicants on the basis of sexual orientation or gender identity. Indeed, the record shows only a single instance in which a parish preschool declined to admit a child of same-sex parents.”
Liberty Counsel added that “the Court need not take judicial notice that rare is the school in America that operates as a breeding ground of hatred towards individuals with same-sex attraction or gender dysphoria. The providers that cannot comply with the requirement are, without exception, traditional religious schools whose tenets do not conform to the prevailing understanding of human biology and sexuality. Whatever the requirement’s stated object, the set of providers it excludes from UPK consists of religious objectors and no one else.”’ But “the Equal Protection Clause secures discrete religious minorities against majorities that legislate without regard to interests they do not share.” (Footnote in United States v. Carolene Prods. Co. (1938)). “A religious community whose view of human sexuality the surrounding majority has devalued is such a minority, and it cannot protect its interests through the political process,” Liberty Counsel maintains.
Therefore, “because the nondiscrimination requirement itself discriminates against petitioners on the basis of religion, this Court should hold that the lower courts erred in applying rational-basis review and that strict scrutiny applies.”
The Related Christian Legal Society v. Martinez Case
Part of the brief submitted by Laycock and CNS, and virtually the entirety of another submitted by the Fellowship of Christian Athletes, the Navigators, Campus Crusade for Christ, InterVarsity Christian Fellowship/USA, and others dealt with a case similar to the St. Mary Parish case, i.e., Christian Legal Society v. Martinez (2010). This decision held that public schools, colleges, and universities may require school-recognized student groups to accept any student into membership or leadership, regardless of their beliefs or religious or secular status. This effectively means that recognized groups must allow even students who disagree with the group’s core commitments (such as Republicans in a Democratic club), or who don’t share the identity of the group (such as non-Hispanics in an Hispanic group) to join the group and perhaps becomes leaders. Thus, a recognized student group may be led by someone opposed to the group’s objectives. Public schools, colleges, and universities do not have to have such a policy. But if they have an “across-the-board all-comers” policy, they may require that all groups allow any student to join the group.
This effectively means that truly religious, and certainly truly Christian student groups are not possible where a university has an “all-comers” policy. While the Martinez decision held that it is still possible for a student group at such a school to restrict membership and exist without school recognition, such a possibility tends not to be viable without access to school facilities. Further, where a student group is not recognized because of an all-comers policy, members of the group have faced harassment.
The briefs pointed out that schools applying the Martinez decision to Christian groups on campus often do not in fact have an “across-the-board all-comers” policy. (In fact, the brief from Laycock, CNS, and others said that the Supreme Court assumed as procedural posture that Hastings Law School had an “across-the-board all-comers” policy (p. 30)). Other groups are allowed to restrict their membership and leadership by reasonable standards. One Muslim group was allowed to restrict leadership to persons who met Islamic standards. The briefs observe as well that “numerous lower court decisions” noted that public schools and universities have allowed student groups to restrict membership on such grounds as “ethnicity, sex, or sexual orientation.” It is Christian groups adhering to orthodox Christianity who are not allowed to restrict membership or leadership by religious standards. The presenting cases, as with St. Mary Catholic Virtue School, involve LGBT identity versus traditional Christianity, while other limitations on student group membership are allowed. Indeed, the FCA brief notes that Colorado invoked this decision to mandate antidiscrimination requirements of all schools receiving UPK funds, whether religious or not. Yet Colorado nevertheless allowed UPK funds to go to schools restricted by race (“historically disadvantaged groups”) and sexual orientation (“the LGBT community”).
FCA chapters, along with chapters of other religious groups have been shut down as a result of the Martinez decision. Martinez, FCA said “denies religious students and groups the equal terms—including recognition—that secular groups enjoy.” The FCA brief noted that “numerous lower court decisions have found that public universities or high schools allowed nonreligious groups to choose leaders and members based on prohibited characteristics such as ethnicity, sex, or sexual orientation. Those cases are strikingly parallel to this one; schools granted exceptions to their nondiscrimination rules to benefit certain minority groups but refused an exception to permit religious exercise.” Because of this, a Christian group may well win in court (some have), but substantial resources are required to pay legal costs, the perhaps protracted legal effort distracts from the work of the group and the students’ time for study, and again, members of a challenged group face harassment. The brief also notes the very reasonable assumption that many Christian groups simply folded under pressure. The process is itself a punishment.
Also Martinez has been undercut by numerous subsequent Supreme Court decisions favoring religious liberty, starting with the Hosanna Tabor v. Equal Employment Opportunity Commission (2012), which holds that even if there is general applicability, the positions of religious leaders, or “ministers,” may follow employment practices along strictly religious lines. Our Lady of Guadalupe School v. Morrissey-Berru (2020) as well as Hosanna-Tabor both concerned the point at issue in Martinez (a religious organization choosing its own leaders) and both reached the opposite conclusion from Martinez as a matter of constitutional law. Additionally, the false claims to “all comers” policies, and the legal difficulties in challenging them should move the court to overturn the Martinez decision.
Conclusion
St. Mary Parish should prevail on the lack of general applicability in the Colorado Department of Early Childhood’s application of antidiscrimination requirements in the UPK program, and perhaps on the program’s lack of equal protection as a “religious gerrymander” which foreseeably negatively impacts religious schools. A win here will fortify the religious liberty of religious schools and groups against the attacks of hostile administrators and activists using the antidiscrimination regime. A loss will seriously undermine jurisprudence accumulating over the last decade and a half defending religious liberty against antidiscrimination attack.
The Supreme Court should be cautious about using equal protection to defend religious liberty. Equal protection has been misused to simply give people what courts think they should have. Understood as guaranteeing equal benefit from law, it is an unclear standard. It is good to point out the “religious gerrymander” engineered in the UPK program. But the gerrymander is possible because of the exclusions required by traditional Catholic faith (or by confessional Protestantism). The gerrymander was engineered on the pretext of bringing down barriers to participation. But there must be barriers to enrollment or membership if groups with particular interests and concerns are recognized, otherwise the groups would exist in name only. This is seen in the logical inability to both accommodate the needs (privacy and safety) of women and girls, and the desire to accommodate males who maintain they are females (and thus want the spaces and benefits of females). It is even seen in the inability to identify as homosexual if persons of the opposite sex may claim the same status (i.e., either male homosexual or lesbian).
We simply cannot have everything we might want in life. Our Constitution allows religious groups to exist with very non-egalitarian beliefs about what is true and real. To give them liberty means we must allow their barriers, just as other groups require barriers to be real groups of whatever identity they might be. A society of undifferentiated individuals before a single authority simply is not workable.
More from IRD:
Clarifying Free Exercise for Religious Schools – Part 1
Clarifying Free Exercise for Religious Schools – Part 2
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