Sometimes, when looking for the religious issue at stake in a case, you must peel off the layers. This is true of St. Mary Catholic Parish, Littleton, Colorado v. Lisa Roy, Director of the Colorado Department of Early Childhood, which is before the Supreme Court on a petition for writ of certiorari. As Senior Counsel for the Foundation for Moral Law, with my associate attorney Talmadge Butts, I have filed an amicus brief supporting St. Mary Catholic Parish.
In 2022, Colorado established the Colorado Universal Preschool Program, offering preschool for every child in the year before kindergarten.
Is preschool good for children? Not necessarily. Some believe preschool causes stress and separation anxiety for many small children, that academic gains from preschool education fade in ensuing years, and that children are better off in their early years with their parents.
Although the program is “universal,” it is voluntary – at least for now. The program is called universal because it provides that all preschool-age Colorado children may enroll in preschool at no cost for up to 15 hours per week. “Free,” of course, is not really free. Somebody (i.e., taxpayers) is paying for it.
Should the State subsidize preschool education, or should parents pay for it themselves? Does providing a benefit at taxpayers’ expense pressure parents (most of whom are taxpayers) to participate in the program?
Colorado refers to the program as “universal” because privately operated preschool programs are eligible for the subsidy. But should the state subsidize private education, and should private preschools accept those subsidies? It seems unfair that parents should have to pay twice for preschool (or other) education – once for public preschools that they do not use, and a second time for the private program they utilize. Subsidizing private programs puts them on an equal footing with public programs.
But on the other hand, shekels bring shackles. If private schools and preschools accept public funds, they may become dependent on those public funds, and as the state imposes restrictions and controls, the private school must comply or lose its funding. Once one gets into the habit of eating at the public trough, it’s hard to stop.
And that’s where the religious liberty issue enters. The Colorado program requires participating preschools to sign an agreement that they will not discriminate based on race, religious affiliation, sexual orientation, gender identity, income, or disability. This has been interpreted to require preschools, including religious preschools, to allow transgender children to use the restrooms and other facilities of their choice.
Of the 2,000 Colorado preschools participating in this program, about 40 are religious institutions. These 40 either have no objection to transgender ideology (and many liberal religions do not), or they have compromised their beliefs to qualify for the subsidy. That pressures more conservative religious institutions because many parents think: “If I send my child to Religious School A, I will receive the subsidy, but if I send my child to Religious School B, I will not. I think I’ll choose Religious School A.” Forced to compete against state-subsidized preschools, many traditional preschools may have difficulty surviving.
St. Mary and another Catholic school, their preschools, the Archdiocese of Denver, and two parent plaintiffs claim this policy conflicts with their religious convictions and thus violates their First Amendment religious rights. On that basis, they filed suit against the State of Colorado in the Federal District Court.
The District Court held that the nondiscrimination requirement does not violate the First Amendment on its face but enjoined Colorado from enforcing the requirement as to religious affiliation if a church has a policy requiring religious affiliation. The 10th U.S. Circuit Court of Appeals affirmed, holding that the nondiscrimination requirement is a “neutral law of general applicability” and therefore not subject to strict scrutiny (compelling interest and no less restrictive means) analysis. St. Mary Catholic Church has appealed to the Supreme Court.
The Foundation’s brief to the Supreme Court contends that the 10th Circuit's ruling conflicts with prior Supreme Court decisions prohibiting discrimination against religious individuals and institutions. For example:
- Trinity Lutheran Church of Columbia, Inc. v. Comer(2017) held that when Missouri established a program of providing playground surfaces for public and private schools, the state could not discriminate against schools run by religious institutions.
- Espinoza v. Montana Department of Revenue(2020) held that when Montana provided subsidies for parents to send their children to private schools, the state could not discriminate against parents who sent their children to religious private schools.
- Carson v. Makin(2022) held that when Maine provided subsidies for parents to send their children to private schools, the state could not discriminate against parents who sent their children to schools that utilized a pervasively religious curriculum.
What part of “don’t discriminate against religion” do these states not understand?
Now that the Supreme Court has effectively overruled the Lemon v. Kurtzman(1971) “Lemon” test for establishment clause, we argued, the Court needs to set aside other court-created tests and, as the Court said in Kennedy v. Bremerton School District(2022), go back to analyzing religious liberty cases in “accord with history and faithfully reflect the understanding of the Founding Fathers.” The Framers would have considered this form of religious discrimination abhorrent.
If allowed to stand, the 10th Circuit ruling in St. Mary sets a dangerous precedent. It endangers religious liberty, and it sets a roadmap by which the government can suppress religion by forcing LGBTQ ideology on religious institutions.
We hope the Court grants certiorari in this case and rules, once again, that governments may not discriminate on the basis of religion.
But win or lose, remember this before accepting government subsidies: With shekels come shackles.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law (obcl.edu) and as Senior Counsel for the Foundation for Moral Law (morallaw.org). He and his wife Marlene live in rural Pike Road, Ala., and may be contacted for speaking engagements at [email protected].
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
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