SCOTUS Looks Ready to Let Public Money Fund Religious Discrimination

Chip Somodevilla/CNP/Zuma Get your news from a source that’s not owned and controlled by oligarchs. Sign up for the free Mother Jones Daily. The Supreme Court’s conservative majority appears poised to further weaken the separation between church and state by requiring that taxpayer dollars subsidize religious schools that deny admission to LGBTQ families. Such a decision would be the latest in line of holdings by this court that have opened the public coffers to private religious institutions. During oral arguments on Tuesday, Justice Elena Kagan framed those previous cases on public funding of religious schools as having been decided on the grounds that “religious people are not being treated the same way as non-religious people.” But in this case, St. Mary Catholic Parish v. Roy, she said, “what you’re asking us to do is something far beyond that. It’s saying, ‘Even though religious people are being treated the same way…that’s not enough. They need a special accommodation.’” That special accommodation is the ability to take taxpayer money without following the nondiscrimination rules required of other schools. The case comes out of Colorado, which has a universal, publicly funded preschool program for four-year-olds. Religious schools can participate, but must promise not to exclude children on the basis of protected characteristics including race, religion, sexual orientation, or gender identity. While several religious schools that committed to the nondiscrimination policy have joined the program, the Archdiocese of Denver, two parish preschools, and two parents sued, arguing that prohibiting the church-run schools from discriminating against transgender kids and the children of LGBTQ couples is actually a form of discrimination against their own right to free religious expression. “Why would we put ourselves in the middle of that?” One of the issues at play is technical, but highly consequential. Under current Supreme Court precedent, Colorado argues, religious entities and individuals cannot get exemptions from generally applicable laws, unless they target a religion for discrimination. The state’s nondiscrimination policy, which applies to all participating preschools, is a generally applicable law. In this case, Colorado proved the requirement applies equally to all during trial in district court, and the 10th Circuit Court of Appeals affirmed that. But the Catholic challengers to the law, and the Trump administration which took their side, argued Tuesday that the policy targets religious schools and seeks to exclude them by forcing them to forgo their beliefs in order to receive public funds. In place of the generally applicable framework, the challengers and the administration believe that the case should be judged by a high standard of judicial review which requires judges to ascertain that the government has a very strong interest in pursing its policy and no other means of obtaining similar results. This standard, called strict scrutiny, is very demanding and government laws often do not hold up under it. But as the Democratic appointees pointed out Tuesday, there are real dangers in routing all religious claims against general laws into a strict scrutiny analysis to be determined by the courts—and, ultimately, the Supreme Court. “Everything’s going to be about ‘How important is this religious belief to you?’ versus ‘How important is this interest here in non-discrimination law to the state?’” Kagan told Sarah Harris, a Justice Department lawyer arguing the administration’s case. Kagan noted the analysis wouldn’t just apply to non-discrimination laws, but to any rule around the provision of public benefits, including education, that a religious group or person said violated their beliefs. “Why would we put ourselves in the middle of that in all these cases with respect to public schools alone?” Kagan asked. “These inquiries could go on forever.” Justice Ketanji Brown Jackson, as well as Justice Sonia Sotomayor, argued that this case-by-case strict scrutiny analysis could go beyond anti-LGBTQ discrimination and open the door to race discrimination. “The religious entity does not want to have to commit to opening its schools to students, children of LGBTQ couples,” Jackson said. “Couldn’t that same logic support a religious entity who says we don’t want to open our schools to students of races that we disagree with, or ethnicities that we disagree with?” Harris’ response was simply to say that the courts would probably find that permission to discriminate on the basis of race would fail the strict scrutiny standard. That wasn’t reassuring to Jackson. “But that’s just arbitrary,” Jackson rebutted. “If we say that’s different, it would just be because we’ve decided that race is different than LGBTQ status. But from the standpoint of rational reasoning, understanding how the Constitution works, I’m not sure those are different.” It’s not hard to see why Harris’ answer—in effect, to trust ultimately this very court not to allow race discrimination—was unsatisfying. This is the same court that has made it harder for Black people to gain admission to good colleges, and appears poised to strike down policies aimed at increasing racial diversity through race neutral means. This is the same court that just this year, in Louisiana v. Callais, finished dismantling the Voting Rights Act of 1965 so that states could use allegedly race-neutral metrics to draw political maps that disempower racial minorities, and repeatedly refused to acknowledge racial discrimination in the map-drawing process, despite lower courts finding ample evidence. Notably, during oral arguments Justice Samuel Alito questioned whether the state should have foreseen that its nondiscrimination policy might end up excluding certain religious preschools from the program. “We have here a requirement that has a very severe impact on certain religions and that was something that everybody could have anticipated, and almost must have anticipated, when this requirement was imposed,” he said. Alito raised multiple hypotheticals suggesting how a law that is generally applicable on its face might actually be singling out a specific religion. Alito never had this worry when he wrote Callais, and gave states license to exclude Black people from state and federal government due to allegedly race neutral criteria like partisanship even though the exclusion of Black people was the anticipated, if not the desired, consequence. That way of thinking could be one reason why Jackson, Kagan, and Sotomayor were uneasy with the idea that a religious objection to a general law would be weighed individually by the courts, with the Republican-appointed 6-3 majority on their court sitting as the final decider. They know the conservative majority to be very concerned with how even neutral, generally applicable laws impact religious Americans, but rather unconcerned with how technically neutral practices impact the rights of racial minorities. It’s pretty clear, based on the questions during oral arguments and the track-record of the Roberts Court, which has increasingly mandated public funding for religious schools and made public schools bend to the will of religious parents, that Colorado is not going to prevail. But it’s not clear how a majority of the justices will achieve that outcome, and whether they will decide to craft a new broader rule to get there, or to simply send this one case back to the lower courts to apply a strict scrutiny standard. If the justices declare the courts open for business to adjudicate when religious institutions get exceptions to the rules that come with public funding, we may enter into a world in which LGBTQ kids and families are increasingly excluded from educational opportunities to make room for religious plaintiffs who don’t want to mingle with people they disagree with. It’s a ridiculous outcome—that the public must subsidize a religious group’s discriminatory practices—but, given the make-up and priorities of this Supreme Court, it’s also the most likely one.