Faith Based Discrimination is Still Discrimination and the Government Should not be Forced to Subsidize It
St. Mary Catholic Parish ("St. Mary") is a private school in Denver, Colorado that openly discriminates against LGBTQ families. Because St. Mary is a private school, nothing in the Constitution forbids it from admitting whomever it pleases or requiring its students and families to adhere to its religious teachings. And nothing in this blog post should be interpreted by anyone to suggest any justification for coercive governmental intervention into the discriminatory policies of St. Mary or any other private religious school (unless the school accepts public money).
But what St. Mary does on its own dime is different from how the government spends taxpayer dollars. Yet tomorrow, St. Mary will argue to the United States Supreme Court that Colorado violated the Free Exercise Clause by excluding it from a state-wide program that provides public money to participating pre-schools. Colorado law requires schools that want the state's money to agree not to discriminate on the basis of a number of characteristics including sexual orientation. St. Mary does not deny that it discriminates on that basis but claims it has a constitutional right to the grant money because the Colorado requirement discriminates against it on the basis of religion in violation of the Free Exercise Clause.
In this post, I will make two separate arguments. First, even though as a private religious school St. Mary may be shielded to some extent from some laws that forbid discrimination in admissions, discriminating on the basis of sexual identity and sexual orientation is morally wrong and the school should be condemned for doing so. Discrimination based on faith is still discrimination, and the wrong does not become right simply because the discrimination is based on faith.
Second, as a constitutional law matter, Colorado has every right to to condition its grant of taxpayer funds on a promise not to discriminate on the basis of characteristics such as race, gender, and sexual orientation. But for the recent non-originalist jurisprudence of the Roberts Court using the Free Exercise Clause as a super-charged weapon to promote religious values, this case would not be in doubt.
Tragically, St. Mary will likely prevail, and Colorado will have to decide whether to use taxpayer funds to subsidize anti-LGBTQ discrimination or end its worthy program of helping families better afford pre-school education. Nothing in the Constitution's text or history supports putting the State to that difficult choice.
St. Mary does not want to accept pre-school children whose parents are same-sex couples because doing so is inconsistent with the anti-LGBTQ tenets of the Catholic Church. St. Mary may well be entitled to exclude such children when acting purely on its own. But the fact that the school may have the right to discriminate in this manner does not mean that it should do so or that it should not be criticized for doing so.
Long ago, I wrote an article for the Daily Beast arguing that major faiths that do not allow women to hold leadership roles have every right to make that choice, but that that choice does not make the discrimination less pernicious. The same is true here.
St. Mary is telling the world that it views same-sex couples and their young children as not worthy of admission. It does not matter whether the parents are devout or follow all other Catholic principles. They are not welcome because of who they are and who they love. That judgment is morally wrong and should be condemned. Yet, no one tomorrow, not even the State, is likely to make that observation, and that is tragic. Right and wrong should still matter even if the wrong is based on religious faith.
St. Mary may also be entitled exclude all people of color from its school when acting purely on its own. It would also be allowed to loudly proclaim that judgment to the world over and over, as many religious institutions did during segregation. If it did so, I would hope that its value judgment would be roundly condemned (despite its legality) by everyone. Overt and hostile anti-LGBTQ discrimination should meet the same fate.
As a constitutional law matter, the Colorado statute governing this case has absolutely nothing to do with religion. It does not single out religion for special or negative treatment, nor does it require any school to abandon any religious practice or exercise. According to the state's brief:
Colorado does not regulate or restrict preschools’ religious curricula or worship. Participating faith-based preschools remain free to teach their faith while receiving public funding. In concrete terms, this means that Catholic schools participating may teach their religious views on sex, marriage, gender, family, and any other topic. But [Colorado] does not allow any publicly funded preschool to exclude children who wish to enroll in the school simply because their parents are gay (to take one example).
[These] efforts to include religious preschools have succeeded. More than forty faith-based providers—including six Catholic Charities preschools that are part of the Archdiocese of Denver—participated in [the program's] inaugural year.
Under any reasonable analysis of the entire First Amendment (including the now all but judicially repealed Establishment Clause), Colorado should have the right to condition public money on the grantee agreeing not to discriminate on the basis of race, gender, or sexual orientation. There was a time (not too long ago) when the Establishment Clause would have prevented public money from going to religious schools at all, with a few exceptions such as grants to decrease the costs of secular textbooks. I argued both in court and in my scholarship that those decisions were wrong and overread the Establishment Clause. Eventually, the Court moved to my position and held that all secular aid that was available to non-religious private schools could be provided to religious schools if the state chose to provide it.
But the Roberts Court has gone much further, transforming the issue from what aid the government may give to religious schools to what aid the government must give to religious schools. As I've written before:
What was once an impermissible choice under the establishment clause, and then an allowable decision under the establishment clause, is now a mandate under the free exercise clause. This shift reflects the Roberts Court's belief that local and state governments must lower the wall of separation whether they want to or not. This change in the law ignores precedent, common sense, and most importantly, federalism concerns pertaining to local decisions over local issues.
In a trilogy of cases where states wanted to exclude religious schools from generally available government aid programs, the Roberts Court held that the Free Exercise Clause is really a Free Exercise Super Equal Protection Clause that prohibits the government from discriminating against religion in the school aid context. Those cases were wrongly decided because they ignored legitimate Establishment Clause and federalism concerns. But at least they involved laws that explicitly made a distinction between religious and non-religious schools.
The Colorado program makes no such distinction, and many religious schools participate and receive the money while signing the non-discrimination pledge. Colorado is not in any way discriminating against religion. It is discriminating against all entities that themselves discriminate on the basis of race, gender, and sexual orientation. If this case involved race or gender, the outcome would be obvious. Again, although St. Mary is allowed to oppose this law as forcefully as it opposes treating same-sex couples and their pre-school children with dignity and compassion, it should not be allowed to dictate to Colorado how it spends it taxpayer dollars unless Colorado itself is discriminating on the basis of religion. But Colorado is doing no such thing.
There are doctrinal complexities in the case that will receive much attention tomorrow, such as whether this law is truly generally applicable and whether a prior landmark Free Exercise case should be reversed. But that will be just noise. Colorado should be allowed to condition its grant programs on the promise of the grantee not to discriminate against marginalized groups--period, full stop.
An analogy may be helpful. Colorado is allowed to condition public money for private schools on the condition that various educational objectives are agreed to by the recipient. For instance, an aid program could be conditioned on the schools' willingness to teach math or geography at certain levels. Similarly, the teaching of science/evolution could be required as a precondition to schools receiving taxpayer dollars. A religious school that does not want to teach science/evolution should not be able to dictate to Colorado that it change its standards to accommodate that school's deviation from required secular educational requirements.
But that is exactly what St. Mary is trying to do in this case, except the secular standards concern admissions, not curriculum. And St. Mary will almost certainly prevail, which reveals how far the Roberts Court is willing to go to impose its religious values on all fifty states.
To prevail in a Free Exercise suit, the plaintiff must show that its ability to freely exercise its religious beliefs must be substantially burdened by the law at issue. Therefore, what St. Mary is really arguing is that it is not just a burden but a substantial burden for it to admit children of same-sex parents. Again, the school may be entitled to exclude such students when acting purely on its own. But the argument that preventing it from doing so would substantially burden its religious exercise should be seen for what it is: a strong statement that what the school stands for would be harmed by the very presence of pre-school children of same-sex couples. That pernicious belief should be condemned by fair-minded people and also constitute legally disqualifying behavior for inclusion in an important program designed by the State to help all children and their families regardless of who the parents choose to love or marry.
-- Eric Segall