Colorado's War on Catholics
A Preview of St. Mary's v. Roy
Colorado refuses to quit. The state has lost four cases at the Supreme Court in the past ten years targeting religious practitioners exercising their beliefs peacefully. This upcoming term, the state has queued up its future fifth loss at the Court, St. Mary Catholic Parish v. Roy.
Colorado offers state-funded tuition assistance for preschool, a program common to many Blue states. The state imposes a number of conditions on receipt of those funds, particularly, requiring that providers cannot participate unless they admit students regardless of “sexual orientation” or “gender identity.” Catholic schools cannot treat same-sex unions or gender ideology as morally neutral and are therefore excluded from the program. The state defends this rule as neutral, since it does not name the religions it harms. Under the Supreme Court’s ruling in Employment Division v. Smith (1990) that a neutral law of general applicability does not violate the Free Exercise Clause, Colorado has a leg to stand on. If the Roberts Court faithfully applies the Constitution, that leg will fail to support the weight of Colorado’s law.
The problems with Smith are well-established, and overturning it is a consensus position among supporters of a robust Free Exercise Clause. The Roberts Court has dug Smith’s grave, and has all but buried the case. In a string of cases decided over the past decade, the Roberts Court held that states may not exclude religious schools from generally available public benefits solely because of their religious character. A state need not fund private education, but once it chooses to do so, it cannot condition participation in the program on the surrender of the participant’s faith. Colorado’s scheme fails that rule.
In St. Mary’s, the lower court’s reliance on the facial neutrality of Colorado’s nondiscrimination requirement collapses under the Supreme Court’s holding in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993). In that case, the Court clarified that the Free Exercise Clause forbids not only overt discrimination against religion but also laws that, while clothed in neutral language, effectively single out religious practice for disfavor. Colorado’s “equal opportunity” mandate operates to exclude Catholic preschools because of their religious identity. The state has simultaneously permitted secular preferences and categorical exemptions allowing schools to prioritize children with disabilities, low-income families, “children of color,” or “gender-nonconforming children.” Colorado’s neutrality argument, even if relevant, fails on its own terms.
In case there was any doubt over Colorado’s animus against Catholics, the state’s hostility is proven by its own history. Colorado’s own constitutional tradition includes the Blaine Amendments, provisions adopted in the late nineteenth century amid widespread anti-Catholic nativism that sought to deny public funds to “sectarian” (code for Catholic) schools while leaving Protestant public education untouched. That same spirit of anti-Catholic attitudes has now evolved to progressive attacks on schools that have done nothing wrong. The state has never received a complaint of discrimination based on sexual orientation or gender identity against the Catholic preschools at issue, which have operated for years under state licensing and other public programs without incident. Families who reject Catholic teaching on these matters remain entirely free to enroll their children in any of the many other public or private providers that participate in the program and to direct their tuition dollars accordingly. The only “harm” the state can identify is the existence of Catholic schools.
Colorado, unfortunately, is no outlier. Several states are taking the same approach. Maine rewrote its tuition program after the Supreme Court decision against it in Carson v. Makin (2022) to continue excluding traditional religious schools while claiming facial neutrality. New York and Washington have also copied this playbook, and new state efforts are emerging to condition federal scholarship tax credits on the abandonment of Catholic teaching. Legislatures and bureaucrats have learned that while they cannot ban religious schools outright, they can redefine religious beliefs as bigotry and exclude Catholics from access to public programs. The Free Exercise Clause risks becoming a “simple semantic exercise,” as the Court warned in Carson.
Until the Roberts Court introduced its jurisprudence on religious inclusion in public funding, the Free Exercise was only slightly less of an inkblot than the Ninth Amendment. Restoring full effect to the clause requires an even stronger defense of religious liberty. Overturning Smith is a precondition to this though, and the Court refused to grant that question in this case. A full realization of religious rights waits another day.
The First Amendment does not require the state to endorse Catholic teaching, but it does require the state to stop punishing Catholics for living it. The Supreme Court should reverse the Tenth Circuit and hand Colorado its seventh loss in ten years. Maybe one day it will learn its lesson. In the meantime, Colorado Catholics deserve the protection of their constitutional rights.
Ethan Savka is a pre-law student at Hillsdale College and the founder of Emergency Docket. His work has appeared in The College Fix, New Guard Press, Crisis Magazine, and elsewhere. He has previously spent time at Convention of States Action and the Heritage Foundation.