Colorado’s Secularist Hostility Strikes Again

The Supreme Court has agreed to hear St. Mary Catholic Parish v. Roy, granting certiorari on the first two questions presented: whether Colorado’s universal preschool program unconstitutionally burdens religious schools by conditioning their participation on rules that conflict with their faith, and whether the Tenth Circuit erred in holding that the Free Exercise Clause is not implicated because Colorado’s exclusion lacks an explicitly religious classification. The Court’s decision to take the case confirms what has become increasingly apparent — that its trilogy of religious liberty decisions in Trinity Lutheran, Espinoza, and Carson has not settled the law so much as it has caused militant state secularism to settle into its crevices and trapdoors. 

Before turning to this landscape, it is worth pausing to celebrate this cert grant and appreciate how far the religious liberty movement has come. Twenty-five years ago, religious schools were routinely shut out of public benefit programs, state Blaine amendments were treated as unimpeachable despite their obvious anti-Catholicism, and the Establishment Clause was deployed as a weapon against faith-based institutions rather than a shield for them. The transformation since then has been remarkable — and it is, without question, one of the conservative legal movement’s greatest achievements. Through patient institution-building, first-rate appellate lawyering, and the political process yielding jurists committed to restoring the First Amendment’s pro-religion orientation, advocates for religious liberty have made life concretely better, more affordable, and freer for millions of Americans of faith. Parents can now direct public education funds to religious schools. Churches can access neutral grant programs. Religious organizations can participate in social services without being forced to secularize. Chalk it up as another real answer to the cynical question of what contemporary conservatism has conserved.  

Back to St. Mary and the opportunities it portends. Colorado runs a universal preschool program — a public benefit available, in principle, to all qualifying providers. St. Mary Catholic Parish and other faith-based schools sought to participate. Colorado said they could, but only if they agreed to conditions that, in practice, require them to operate contrary to their religious convictions. The schools declined on those terms and sued. The Tenth Circuit ruled against them, reasoning that because Colorado’s conditions are facially neutral — they don’t say “no religious schools” — the Free Exercise Clause is not triggered in the way it was in Carson or Espinoza. 

That reasoning deserves the scrutiny the Court will now give it. The whole point of Carson v. Makin was to close exactly this kind of escape hatch. In that case, Maine had tried to draw a distinction between a school’s religious identity (which Espinoza protected) and a school’s religious conduct — the actual practice of teaching through a religious lens. The Court rejected that distinction as artificial. (For those who are interested, Professor Michael A. Helfand’s explanation of why the distinction was itself a kind of religious chauvinism is fascinating.) A school that provides a genuinely religious education cannot separate what it is from what it does. Maine’s rule, whatever its formal framing, “operate[d] to identify and exclude otherwise eligible schools on the basis of their religious exercise.” The Court said that is discrimination against religion.