Colorado has been trying to slip religious discrimination past constitutional guardrails by repackaging it in facially neutral language. On Tuesday, in the St. Mary Catholic Parish v. Roy oral argument, a majority of the Supreme Court seemed able to see past yet another attempt by the state to evade past decisions against it.
As I have discussed, at issue in the case is Colorado’s “universal” preschool program, which shuts out Catholic preschools because they ask families to support Church teaching on marriage and sexuality. The state’s defense is that its rule never explicitly mentions religion. Justice Gorsuch exposed the problem with that theory: “If everything turned on express discrimination as opposed to being more careful with your words, what would be left of Sherbert [v. Verner] and Thomas [v. Review Board of the Indiana Employment Security Division]?” In both cases, states were found to have unconstitutionally denied unemployment benefits to workers who had lost their jobs (after being fired in Sherbert and quitting in Thomas) for religious reasons.
Justice Kagan, by contrast, said it “would be a bit far-fetched to say that the government is doing this surreptitiously to get at religious schools.” The idea that Colorado’s scheme isn’t targeting religious schools was laughable, and Kagan herself later conceded it “seems absolutely true” that Colorado’s lawmakers “would presumably know that some Catholic schools would not wish to go along,” before insisting that isn’t the legal test. Justice Barrett, recalling Colorado’s recent history of disputes with “bakers or web designers or . . . therapists,” put it plainly: “It’s hard to see how this wasn’t seen coming.” She later pressed Helen Norton, Colorado’s counsel, to explain the difference between excluding Catholic schools outright and “choosing to impose a condition that you know that those schools will be unable to agree to.” She also flagged a 2022 New York Times op-ed by law professor Aaron Tang that, as she described it, told states, “hey, don’t worry”: After Carson v. Makin, they could achieve the same result with nondiscrimination requirements that religions holding traditional beliefs could not meet.
Justice Jackson offered a hypothetical about a religious school that believes “female students aren’t allowed or shouldn’t be allowed to learn math at all.” It was a ridiculous hypothetical that seems to betray her background assumptions that many religions are benighted and opposed to equality. Never mind the decisive role played by Christianity in Western civilization’s assumption of the equality of men and women in the first place.
A ruling for the schools would subject Colorado’s exclusion to strict scrutiny, the standard Sherbert applied to public benefits. Yet the liberal justices presented strict scrutiny as if ruling for the schools would leave states helpless against every claimed religious exemption, up to and including racial discrimination. Justice Kagan dismissed strict scrutiny as “a kind of balancing test.” Justice Gorsuch set the record straight: “[W]e assess whether the government has a compelling interest and whether it’s narrowly tailored to that interest without balancing against the interest on the other side.” The federal government and some 40 states already apply that test under the Religious Freedom Restoration Act and its state counterparts.
Chief Justice Roberts told Norton that she seemed “quite anxious to bury Sherbert, perhaps as anxious as the other side is to bury [Employment Division v.] Smith,” adding that “nothing in our precedent has backed away from Sherbert.”
Justice Alito rebuked Colorado for a requirement with “a very severe impact on certain religions . . . that everybody could have anticipated and almost must have anticipated”; “little evidence, if any evidence” that same-sex couples can’t find other preschools; and the state’s string of First Amendment losses. “What should we make of all this?” he asked.
Colorado has given other types of schools exceptions from its general nondiscrimination rule, so Justice Kavanaugh pressed the state on why it wouldn’t embrace schools with religiously diverse perspectives as well. “Why not seek the win/win?” he asked. “[T]here are 2,000 schools. There are only 34 Catholic schools.” Under Colorado’s rules, he noted, “you can have a vegetarian school, but you can’t have a Catholic school, you can’t have a Jewish school.”
After Tuesday’s oral argument, the Court seems well positioned to reach a winning decision for the people of Colorado—one that preserves the longstanding Sherbert standard that maintains religious freedom protections in public benefits cases. A majority of the justices astutely recognize Colorado’s latest shenanigans for what they are and seem willing to give the state another dose of constitutional accountability.