Supreme Court to Rule on Religious Preschool Case
The state that leads the nation in attempting to deny citizens their religious liberty will once again defend its discriminatory action at the U.S. Supreme Court.
And the state that leads the nation in losing those decisions before the high court will likely keep that losing streak alive.
It’s Colorado, in case you didn’t know. The state that hassles Christian bakers and tries to make them bake wedding cakes offensive to their religious beliefs (see Masterpiece Cakeshop). The state that tries to require website designers to put speech they vehemently disagree with for religious reasons into wedding websites they create (see 303 Creative). The state that tells licensed Christian therapists they cannot attempt to change a counselee’s sexual orientation or gender identity (they can only affirm it, according to the state) (see Chiles v. Salazar). (RELATED: When the State Polices Speech)
It lost all those at the Supreme Court, by scores of 7–2, 6–3, and 8–1, respectively.
And it’s liable to lose St. Mary Catholic Parish v. Roy as well, a case the Supreme Court agreed to hear last week.
This case is about a universal preschool program in Colorado that gives families with four-year-old kids money to send those kids to the preschool of their choosing. They get up to 15 hours free per week at any preschool in the state, whether in-home or faith-based providers. All families are eligible, regardless of the parents’ or children’s race, religion, sexual orientation, gender identity, or anything else, and must be admitted to the school of their choosing.
The state permits exceptions to this mandate, however, “allowing preschools to admit only ‘children of color,’ ‘gender-nonconforming children,’ ‘the LGBTQ community,’ low-income families, and children with disabilities,” according to the plaintiffs’ writ requesting certiorari.
The Archdiocese of Denver, which governs 34 preschools, sought an accommodation as well, asking that they be allowed to accept only families in their preschools who agree with church teaching, including its tenets on sexual orientation and gender identity. To refuse them this exception, the archdiocese maintained, would require them to compromise their beliefs.
A state bureaucracy denied the request; plaintiffs sued and lost in district court in 2024; the 10th Circuit Court of Appeals upheld the district court ruling; and now the matter goes before the nine justices in black robes.
Thus is the now-familiar question taken up anew on whether religious entities can participate in state-funded programs.
Thus is the now-familiar question taken up anew on whether religious entities can participate in state-funded programs. The states that restrict them from doing so have been losing these cases lately. Three times in the past 10 years has the high court stipulated that a government cannot exclude religious parties from the benefits available to the general public simply because of their religious beliefs or exercise.
In 2017, the Court ruled that a Lutheran preschool in Missouri was permitted to use generally available state funds to pave its playground. In 2020, it said children in Montana could not be denied participation in a scholarship program simply because they attend religious schools. And in 2022, SCOTUS ruled that religious schools in Maine could not be denied public funds simply because they were religious.
The respective states in all three cases attempted to deny the religious groups or individuals participation in generally available state programs.
At the heart of these legal squabbles is the infamous 1990 case Smith v. Employment Division.
Prior to this case, which involved the ceremonial use of peyote, the government had to show a “compelling interest” before it could place a burden on the free exercise of religion, and any burden it imposed had to be done “in the least restrictive means possible.”
The Smith decision, written by Justice Antonin Scalia, held that in “laws of general applicability,” that is, laws that apply equally to everybody, the government had to show only that religious behavior wasn’t specifically targeted by the law for it to escape “strict scrutiny.”
This is the rationale behind many of these attacks on religious liberty — the pertinent law does not target religion specifically; it applies to everyone, and thus appeals to religious liberty can be denied.
Many have been the jurists who have lamented the inadequacy of Smith, including some sitting justices. Practically every recent religious liberty case coming before the high court has also asked that Smith be overruled.
Indeed, the plaintiffs in St. Mary Catholic Parish v. Roy did exactly that, asking in their writ “[w]hether Employment Division v. Smith should be overruled.”
Wrote the plaintiffs in one court document, “Until this Court excises it, Smith will remain a malignancy within the First Amendment. For the sake of those whose religious freedom is being infringed today and will be in coming years, the Court ought to undertake the necessary surgery now.”
While a likely winner in the preschool case, the Denver archdiocese will have to wait another day for the excision of that malignancy. The high court explicitly declined the opportunity to consider Smith in this case.
READ MORE from Tom Raabe:
Robert Duvall, Movie Preacher Extraordinaire