A view of the Supreme Court in Washington, DC, on October 14.
Saul Loeb/AFP via Getty Images
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Saul Loeb/AFP via Getty Images
On Tuesday, the Supreme Court will hear arguments in a case pitting the Catholic Church against taxpayer-funded school programs for all 4-year-olds in Colorado. At issue is whether religious schools can refuse to admit children of gay and trans parents in violation of a state law that prohibits discrimination.
The first line of the Bill of Rights says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” » From the founding of this country, Thomas Jefferson described this clause as creating a “wall of separation between church and state.”
The Supreme Court officially adopted this idea in the 1940s, making it the law of the land — until about 10 years ago. That’s when the Court’s new conservative majority made an increasingly dramatic doctrinal reversal, focusing not on the separation of church and state, but on that second clause of the First Amendment: protecting the free exercise of religion.
“It’s literally the opposite of what the law was not that long ago. It’s just a complete change,” says Frank Ravitch, a law professor at the University of Michigan who has written extensively on the Constitution’s religion clauses.
To cite just one example, the Supreme Court, by a vote of 8 to 1, ruled in 1983 that Bob Jones University should lose its tax-exempt status because it prohibits interracial dating and interracial marriage on religious grounds, which constitutes racial discrimination that government money cannot support.
That said, it is unclear whether the court will now reach a similar conclusion.
Why then? Because race occupies a “unique” place in American history, says Professor Douglas Laycock, professor emeritus of law at the University of Texas at Austin and the University of Virginia. “There’s nothing like 250 years of slavery, civil war, 750,000 deaths, three constitutional amendments. Nothing like it for any other group,” he says.
As for the Colorado case, Laycock acknowledges that the Archdiocese of Denver is discriminating, but he adds: “The question is whether this discrimination is a protected exercise of religion.” » Rather than focusing on the separation of church and state, the current court focused on the rights of religious groups against state and federal laws that prohibit discrimination based on race, sex, religion or other categories.
It’s the sex aspect that has put a damper on Colorado’s sweeping program to ensure that virtually every 4-year-old in the state receives a preschool education.
“The law was really about implementing a program that said we want every child, no matter where they live, to be able to have access to universal preschool,” says Steve Fenberg, who was president of the Colorado state Senate when the preschool program was signed into law, with an allocation of $6,300 for each child enrolled in the program each year, the money coming from a tobacco tax.
To achieve this, the state did something that most other states have not done. He created a broad plan, including religious schools, provided the schools follow a state law prohibiting discrimination based on race, religion, sexual orientation or gender identity.
Colorado state Rep. Emily Sirota, a lead sponsor of the universal pre-K bill, emphasizes that the state wanted parents to have “a robust choice” about where their 4-year-olds would go to school.
Indeed, she notes that the Catholic Church initially supported the program and that Catholic charities continue to participate, along with other religious groups, including at least 35 Christian schools, one Muslim school and three Jewish schools.
“The caveat is you can’t discriminate and you have to allow all students to participate,” former Sen. Fenberg said.
It was because of this warning that things went wrong. The Archdiocese of Denver and two parishes challenged the law in court, represented by the Becket Fund for Religious Liberty and its CEO, Mark Rienzi. He argues that Colorado’s law blatantly discriminates against Catholic schools.
“They only exclude religious schools organized around beliefs that Colorado doesn’t like. And that’s the constitutional problem,” Rienzi says. “Not everyone has to be Catholic to attend, but they must agree to support Catholic teachings and not contradict them publicly. That’s how these schools are organized.”
Therefore, the Church seeks an exemption from the state’s anti-discrimination law, which prohibits denying school entry to 4-year-olds whose parents or potentially other family members are gay or trans.
Of course, not all Catholic programs operate at the same pace.
“I disagree with the idea that the sky is falling,” says Tim Uhl, who has served in several leadership positions in Catholic school systems in seven states. He is currently the interim director of mission and ministry at Notre Dame High School in San Jose, Calif., and is part of a group of Catholic school principals who filed a brief position paper with Colorado.
“We accept students who are not Catholic and families who are not Catholic,” Uhl notes, adding that non-Catholic families “understand that even if they don’t agree with certain doctrines, that doesn’t mean they’re going to be disruptive…You know, diversity of opinion and diversity of thought is part of an educational experience.”
But the Archdiocese of Denver has a different view. In an article published in the Denver PostArchbishop James R. Golka wrote that as a result of Colorado’s preschool program, Catholic school enrollment declined by 20 percent in the archdiocese and two preschools closed, including one that serves “minority and low-income families.”
But the gravest “tragedy,” the archbishop said, is that “Colorado’s attack on Catholic education threatens the culture as a whole.” In our age of hyper-secularization, moral relativism, and technical reductionism, we urgently need schools that teach students who they truly are: immortal souls, beloved of God.” Instead, he added, “the predictable result is a culture detached from the truth, adrift in confusion.”
Scott Elmer, superintendent of Catholic schools for the archdiocese, says “it’s very rare” for LGBTQ parents to attempt to enroll their children. “It’s not something we deal with regularly,” he adds.
That said, however, the Supreme Court’s vast conservative majority, including all three of President Trump’s appointees, have sent strong signals that they are moving toward a religious rights revolution in ways that were not widely embraced before.
Last year, the court was evenly divided on whether taxpayer-funded charter schools could include religious schools and instruction. But because Judge Amy Coney Barrett recused herself over a potential conflict of interest, the justices dropped the case.
Today, the Colorado case is before the Supreme Court, and this time Barrett did not feel the need to recuse herself. So there will be a full court ready to decide the case.
“The question is, how far will the Supreme Court go to require the government to fund religious schools?” asks Erwin Chemerinsky, dean of Berkeley Law School.
Then, he observes, “there is the question of whether the government should fund religious charter schools? … We don’t know how far the court is willing to go.” After all, charter schools were designed to be public schools that operate independently under a performance-based contract with state or local government agencies that provide taxpayer dollars for funding.
There are some 8,000 charter schools nationally, and about 276 in Colorado, and until now they have not been run by religious groups.
However, just a few weeks ago, a federal district judge in Oklahoma allowed a taxpayer-funded Jewish charter school “founded on enduring Jewish values” to open with $2.6 million in state funding that is expected to grow to $8.3 million in public funds by 2030. The school’s fate remains in limbo.
Whether this trend will continue and expand depends, of course, on the Supreme Court’s decision in the Colorado case.
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