Note: Earlier today we sent out an article on this case that some readers complained was too difficult to get through on a Monday morning. I re-read it and agree. It’s important enough to that everyone should be able to understand what’s happening and it is in line with our prior concern that government money comes with regulation and it’s hard for a religious institution to “have its cake and eat it too.” Here is a clearer version, thanks for Mr. Altman’s machine.
Let me know what you think. Do you like this or the more formal style better?
Imagine a Catholic preschool that doesn’t want to enroll the child of a same-sex couple. Colorado says that school can’t refuse admission because the state pays for preschool with tax dollars. The school says that’s unfair because it goes against Catholic teachings about marriage and family.
This real conflict is now headed to the Supreme Court, which said Monday it will decide whether religious schools have to follow antidiscrimination rules when they accept public money.
Here’s what happened. In 2020, Colorado voters approved funding for free universal preschool. The state said any school that wants this money has to promise not to discriminate. No turning away kids because of race, religion, gender, sexual orientation, disability, or family income.
The Archdiocese of Denver and two Catholic parishes said no thanks. They told their schools not to participate because they couldn’t agree to those rules. They believe that serving families with same-sex parents or transgender children would contradict their religious mission.
So they sued Colorado, arguing the state was punishing them for their religious beliefs. They wanted a court to let them opt out of the nondiscrimination rule.
A lower court said no. And then an appeals court agreed. The judges said Colorado was not discriminating against Catholic schools. Instead, the state was simply saying all schools that take public money have to follow the same rules. The schools are free to teach whatever they want in the classroom, but when it comes to who gets in the door, everyone gets the same treatment.
Now the Supreme Court will take another look. But here’s the thing: the justices are only asking two specific questions, not the broad question the Catholic schools wanted them to ask.
Question one: Is Colorado breaking its own rules? The state lets schools ask for special exceptions. For example, a school can say “we want to take mostly kids with special needs” or “we want to take mostly kids from low-income families.” The Catholic schools are saying if Colorado allows exceptions for those groups, it should also allow them to make an exception for their religious beliefs. The appeals court said that doesn’t make sense because helping disabled kids or poor kids is different from excluding kids based on their parents’ relationship status.
Question two: Is the nondiscrimination rule really just a sneaky way to target religion? The Catholic schools say it is. They argue Colorado is using this rule to force them to do something that violates their faith. Colorado says no, the rule applies to everyone equally. If a school wants public money, it has to treat all families the same. That’s it. No special targeting.
The Supreme Court pointedly did NOT ask a third question that the Catholic schools pushed for: whether the whole system of religious liberty law is wrong. The Catholic schools wanted the justices to say that religious beliefs should always win when they conflict with government rules, even if those rules apply to everyone. The Court’s decision to ignore that question suggests the justices are not interested in such a major change right now.
What’s really at stake here is simple: When a religious organization takes government money, how much of its religious freedom does it have to give up? The Court will try to answer that in the coming months. Oral arguments are expected sometime next year.
