Religious liberty in education: Back to the Supreme Court
The question of whether, when, and how public funding may flow to religious schools has been contested for more than 150 years, animated by the tension between the First Amendment’s Establishment Clause, which bars the state from sponsoring religion, and its Free Exercise Clause, which restricts the burdens that can be placed on religion.
Over the past 25 years, the Supreme Court has resolved that tension in stages: first holding that the Constitution does not forbid public dollars from reaching religious schools through parents’ free choices (Zelman v. Simmons-Harris, 2002); then that states cannot deny religious schools a benefit freely available to their secular counterparts (Trinity Lutheran v. Comer, 2017; Espinoza v. Montana, 2020); and, finally, that states cannot evade that rule by drawing a line between a school’s religious status and its religious use of funds by saying, in effect, “we will fund a religious school, but not if it does religious things with the money” (Carson v. Makin, 2022).
Now the Court has agreed to hear yet another case in this realm, St. Mary Catholic Parish v. Roy, which raises a different and perhaps more vexing question: What happens when the free exercise of religion collides with a state’s anti-discrimination laws? How the Court answers could determine whether states may attach conditions to public benefits that religious institutions cannot, in conscience, accept.
St. Mary centers on a conflict over Colorado’s universal preschool program, which promises every family in the state a free year of early education at the provider of their choice. To participate, a preschool must sign an agreement pledging not to base its enrollment decisions on a list of characteristics that includes sexual orientation and gender identity. Two parish preschools in the Archdiocese of Denver—St. Mary’s in Littleton and St. Bernadette’s in Lakewood—say that signing such a pledge would require them to adopt policies that contradict Church teaching on marriage and the human person. The case was joined by Dan and Lisa Sheley, parents whose children attend St. Mary’s, who argue they are shut out of the universal program their own taxes help fund.
