SCOTUS liberals treat Catholic teaching like racism

Colorado has a simple pitch for its universal preschool program: every 4-year-old in the state gets a free seat. About 2,000 preschools participate. However, the state’s 34 Catholic preschools do not, because Colorado refused to accommodate their faith. So when Justice Brett Kavanaugh asked Colorado’s lawyer at oral argument Tuesday in St. Mary Catholic Parish v. Roy why the state couldn’t find a “win/win,” it was a fair question.

Plenty of schools welcome families of every kind, and a handful of Catholic schools could keep their faith and still take part. Instead, he said, Colorado had built “a would-be solution in search of a problem.” 

I filed an amicus brief on behalf of real Catholic families who cannot get the subsidy if they choose a Catholic school. These preschools ask every family, Catholic or not, to affirm in good faith a statement of community beliefs. The archdiocese asked Colorado for an accommodation before the program even started. The state called its mandate a “hard limit.”  

Most striking about the argument was how some of the justices heard the Church’s request. Justice Sotomayor asked whether a school can “reject a child because their parents are homosexual,” and then whether the same logic would allow excluding black children. Justice Jackson saw no principled difference. Justice Kagan credited Colorado’s good faith, but she, too, called this a “special accommodation.” 

Justice Sotomayor has often credited her own Catholic education for her success in life. Apparently, that is not something the rising preschoolers of Colorado should be able to count on. 

The race comparison deserves a real answer, and the Court has already given one. In Bob Jones University v. United States, it upheld the IRS’s decision to strip tax-exempt status from schools with racially discriminatory policies, even though those policies rested on sincere religious belief. The schools lost a benefit, but only after the government justified taking it. The Court was unequivocal that ending racial discrimination in education is a compelling interest, and it reached that conclusion by weighing the interest against the burden on religion and asking whether any less restrictive means existed. The Catholic schools are asking for the same test. Colorado wants to deny a benefit without making that showing, arguing that because its rule is neutral, the question never arises. A state sure of its compelling interest should welcome the test. 

It also helps to ask what harm is being prevented. Participating preschools sit within three miles of every Catholic preschool in the archdiocese, and the state’s own expert called any harm speculative. Counsel for the schools told the Court the situation has never come up at any of the Archdiocese’s preschools. 

Then there is Obergefell v. Hodges, which said the traditional view of marriage rests on “decent and honorable religious or philosophical premises.” Justice Kavanaugh reminded Colorado of that, and its lawyer agreed “absolutely.” But a parish’s enrollment statement is not a law. It denies no one a marriage license and binds no one who doesn’t choose the school. An accommodation is not a favor to the schools. It respects the convictions Obergefell said deserved respect and safeguards the Church’s own religious freedom. 

Justice Barrett presented a hypothetical that asked, in essence, what a Catholic school could do to join the program without an accommodation. Colorado’s lawyer said regulators would act if a complaint came in. I suspect such schools would likely end up in violation, since the state treats Church teaching on marriage and gender as incompatible with its mandate. Curiously, the mandate also reaches gender identity, yet the questioning on Tuesday did not address that. 

I don’t want to overstate where this is headed. Several justices, including Kavanaugh, Barrett, Alito and Gorsuch, were plainly troubled by Colorado’s position. But if three of the nine greet traditional Catholic teaching on marriage with this much skepticism, we have a long way to go. Respect for views grounded in faith has to extend beyond the courtroom, to preschool enrollment forms, public benefits, and ordinary families raising their children in their faith.

Religious freedom is a civil right, and a state that takes civil rights seriously should protect it alongside the others. Accommodation is how it does that. Colorado never answered Justice Kavanaugh’s question. The Court should, for the families paying the price.