SCOTUS Looks Ready to Let Public Money Fund Religious Discrimination

The conservative majority on the Supreme Court seems to be on the verge of weakening the separation between church and state by allowing taxpayer-funded religious schools to discriminate against LGBTQ families. This case, St. Mary Catholic Parish v. Roy, is the latest in a series of rulings by this court that have opened the public purse to private religious institutions.

Justice Elena Kagan highlighted the difference between the current case and previous ones, stating that the current issue goes beyond simply treating religious and non-religious people equally. Instead, it argues that religious institutions should receive a special accommodation by receiving public funds without adhering to the same nondiscrimination rules as other schools.

The dispute originates from Colorado, which has a publicly funded preschool program for four-year-olds. Religious schools can participate, but must promise not to exclude children based on protected characteristics, including race, religion, sexual orientation, or gender identity. While several religious schools have joined the program, the Archdiocese of Denver, two parish preschools, and two parents challenged the law, arguing that it discriminates against transgender children and the children of LGBTQ couples.

The crux of the issue is whether a generally applicable law, like Colorado's nondiscrimination policy, can be used to target religious institutions. Under current Supreme Court precedent, religious entities cannot get exemptions from generally applicable laws unless they specifically target religion for discrimination. The state's policy applies equally to all participating preschools, and this requirement was upheld by both the district court and the 10th Circuit Court of Appeals.

However, the Catholic challengers and the Trump administration argue that the policy targets religious schools and seeks to force them to abandon their beliefs in order to receive public funds. They believe that the case should be reviewed under strict scrutiny, a high standard where judges must determine that the government has a very strong interest in its policy and no other means of achieving similar results.

Justice Elena Kagan pushed back against this standard, pointing out the dangers of applying it to all religious claims against general laws. She expressed concerns about the potential for endless case-by-case scrutiny, which could extend to any rule involving public benefits, such as education, that religious groups or individuals claim violate their beliefs.

Justice Ketanji Brown Jackson also raised concerns that this case-by-case strict scrutiny analysis could lead to a slippery slope, potentially opening the door for race discrimination claims. She questioned whether the same logic could be used to argue that a religious entity should have the right to discriminate against students of certain races or ethnicities.