An earlier article reviewed the St. Mary Catholic Parish v. Roy case, currently before the Supreme Court, which concerns the claim of St. Mary Catholic Virtue School in Littleton, Colorado, to a religious exemption in the state’s Universal Preschool Program (UPK) in view of the First Amendment and the secular exemptions given. Additional briefs to the U.S. Supreme Court from religious organizations showed that the state’s application of the Colorado Anti-Discrimination Act (CADA) to the UPK program was not generally applicable (as required by the Employment Division v. Smith (1990) decision, which limits religious liberty), and also the regulations transgress on parental rights, triggering strict scrutiny under the First Amendment’s Free Exercise clause (which requires laws that burden religious liberty to have a compelling state interest applied in the least restrictive way).
A brief submitted by the Council for Christian Colleges & Universities (CCCU), Brigham Young University, the Diocese of Colorado Springs, and several other (largely Evangelical) religious organizations was especially concerned with the corporate religious freedom aspect of the St. Mary Parish case
Quoting (liberal) Justices William Brennan and Thurgood Marshall in the Corporation of Presiding Bishop v. Amos (1987) decision, which involved an individual fired from a nonprofit organization associated with the Latter-Day Saints (LDS) church because there was no proof that she was a member of the LDS church in good standing: “determining that certain activities are in furtherance of an organization’s religious mission, and that only those committed to that mission should conduct them, is . . . a means by which a religious community defines itself.” Religious organizations must be able to make decisions based on religious standards in hiring and firing, which is to say they must have “church autonomy.” They must be able to order their “internal affairs” and “be free to: select their own leaders, define their own doctrines, resolve their own disputes, and run their own institutions.”
There is a strongly communal aspect to this autonomy, the justices said. For many people involved in these institutions, “religious activity derives meaning” from the “larger religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals.” The organizations filing the brief (like surely many others) said that they “intertwine their carrying out of activities in service to God and society” with the rules and ethos of the religious organization, and the communal aspect is a large part of the inspiration for the religious service given.
Some religious educational or charitable organizations may have beliefs which “dictate” that participants be “fellow believers.” Others may allow non-believers to participate, but only if they respect the organization’s “doctrinal positions and live in accordance with them.” This helps ensure that the organization’s activities “which may be facially similar to those of secular organizations—maintain their distinctive religious character.” The point is not just the provision of services, but that the provision is a genuine religious exercise according to the doctrines of the particular religion.
It is these “communal elements” which disqualify St. Mary Catholic Virtue School from participation in the UPK program, according to the State of Colorado. Religiously determined criteria for enrollment in the school (which lower courts did not allow), are no less important for the school community than religiously determined hiring and firing (which Colorado did not allow, but the appeals court did)
In mandating the acceptance of LGBT identifying staff, parents, and students, the state is effectively favoring some religions in their religious exercise over others. This, the brief said, is “textbook denominational discrimination,” violating the First Amendment’s Establishment Clause. CCCU and the other amici quoted Justice Anthony Kennedy’s concurrence in the Burwell v. Hobby Lobby (2014) decision to say that “free exercise of religion” requires that more than just belief be free, but also there must be freedom to “establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.”
Freedom for Religious Practice as Well as Religious Status
The National Association of Evangelicals, Church of Jesus Christ of Latter-Day Saints, Ethics and Religious Liberty Commission of the Southern Baptist Convention, and other organizations submitted a brief saying that contrary to the claim that the First Amendment protects only religious status, rather than religious exercise, “we join petitioners in rejecting that misreading of the Free Exercise Clause. The Constitution ‘protects against policies that impose more subtle forms of interference with’ religious practice.” (quoting Mahmoud v. Taylor (2025)).
NAE, LDS, ERLC, and others said that “the Tenth Circuit was mistaken to hold that a claim of religious discrimination demands proof of animus or hostility. Religious discrimination is wrong in itself. Excluding a person or institution from a widely available government program because of religious beliefs and practices denies them their share of American citizenship and defies the Constitution’s guarantee of religious freedom.”
Additionally, not merely religious affiliation, but religious exercise may not be discriminated against. This is a crucial clarification, because religious status means little in terms of the right to religious freedom, if the state may prohibit religious practices it does not like. There remain the Smith requirements of showing lack of neutrality and/or general applicability, but if these are satisfied, the First Amendment can be applied
An additional consideration advanced by the amici is that the Establishment Clause does not merely prohibit state churches, but prohibits favoring some religious groups over others because of their religious practice (which the state’s antidiscrimination requirement does because it favors religious groups that accept homosexuality and transgenderism), just as the Free Exercise clause prohibits discrimination which favors some religious practice over others
The View from a Compliant Religious School
Darren Patterson Christian Academy accepts LGBT identifying students, but requires that “all employees and students adhere to its religious understandings of sex and gender.” This means “beliefs involving pronouns, a dress code, and sensitive places, like bathrooms” determine school practice. Colorado wants to therefore exclude the academy from the UPK benefit, but under court injunction, the academy is participating.
Although Darren Patterson accepts LGBT identifying students, the school supports St. Mary Parish and the Archdiocese of Denver. It understands that the full conditions that state wants to impose on schools receiving UPK funds “burden both parents’ right to direct the religious upbringing of their children and the Academy’s ability to teach its faith.” To receive a generally available educational benefit, the state mandate requires the Academy to alter internal policies in a manner that would thwart the Academy’s ability to teach its faith and direct the religious upbringing of the children in its care. The state “has even threatened to investigate what religious beliefs the Academy teaches.”
A Colorado official testified in lower courts that the state’s mandate for schools receiving UPK funds could exclude religious schools that teach a traditional view of marriage, depending on the state’s evaluation of “the ‘effect’ or ‘impact’ those doctrines have on students.” The mandate thus really extends far beyond admissions’ policies into religious schools’ ability “to teach the faith.” Thus “the Mandate intrudes deep into the autonomy that the First Amendment promises to religious organizations.”
This then has an important constitutional effect. The Mahmoud v. Taylor (2025) decision, which declared Montgomery County, Maryland’s mandatory pro-LGBT education unconstitutional, puts whatever burdens the parental right to direct one’s children’s education outside of the applicability of the Smith decision, and subject to strict scrutiny. Additionally, the Sherbert v. Verner (1963) decision, which demanded strict scrutiny in religious liberty cases, often held to be overruled by Smith, still applies where public benefits are concerned, rather than criminal law, and where there are individualized exemptions. The Smith decision indeed involved unemployment benefits, but also criminal law.
Darren Patterson also cited the Hosanna-Tabor v. EEOC (2012) decision and Our Lady of Gudalupe v. Morrissey-Berru (2020) (both concerned with the employment of religious teachers) in support of the autonomy of religious schools with respect to their teaching of religious doctrine. The First Amendment does not allow states to “approve, disapprove, classify, regulate, or in any manner control” the content of religious teachings. Intrusions into a religious schools’ right to “teach the faith” violates the First Amendment guarantee of religious freedom. Quoting Samuel Alito in Hosanna-Tabor v. EEOC (“[B]oth the content and credibility of a religion’s message depend vitally on the … conduct of its teachers.”
In short, whenever the government grants individualized exemptions and requires adherents of a religion to “choose between their religious beliefs and receiving a government benefit … strict scrutiny applies.”
Attempts to Evade Supreme Court Rulings
The Notre Dame Education Law Project, the Manhattan Institute, the Islam and Religious Freedom Action Team, and the Jewish Coalition for Religious Liberty noted in their brief that the Supreme Court has repeatedly had to intervene to prevent a narrowing of its plain ruling that states “may not target ‘the religious for disfavored treatment’ or ‘penalize religious activity’ by denying organizations otherwise available benefits simply because of their religious exercise.” Trinity Lutheran, Espinoza, and Carson are all expressions of this rule. Now it is again necessary for the court to intervene to say that religious schools cannot be denied benefits because the state “disagrees with how they live out their faith.”
Essentially, states like Colorado or Maine (which was the state from which the law in the Carson decision was reviewed) accept that they cannot discriminate against religious schools (religious status) in providing public benefits, but prohibit funds based on religious practice they do not like, such as teaching the school’s religion as the objective truth, to the exclusion of others, or faith-based practices against homosexuality or transgenderism. The brief observed that “allowing Colorado’s gambit would threaten to dramatically minimize this Court’s recent cases. Indeed, this very tactic has been hailed as a model for lawmakers’ who find themselves ‘on the losing end’ of Carson and wish to ‘avoid the consequences of [that] ruling.’ Legislators are endeavoring to ‘outmaneuver’ this Court, and the dictates of the First Amendment, by attaching a variety of religiously onerous—but supposedly neutral—conditions that would drive religious schools out of aid programs.”
“Maine’s new restrictions do exactly what Carson forbade: They ‘operate to . . . exclude otherwise eligible schools [from the tuition program] on the basis of their religious exercise.’ That was their very point. Indeed, Maine’s political leaders openly advertised that the goal of these amendments was to dodge the effects of Carson … The day Carson was decided, Maine’s Attorney General denounced the ruling, condemned schools ‘that promote a single religion,’ and accused them of fostering ‘bigotry.’ He promised to work with political leaders ‘to address the Court’s decision and ensure that public money’ would not flow to such schools. Days later, Maine’s Speaker of the House boasted that legislators had already done so by changing … [the rules in anticipation of] the ludicrous decision from the far-right SCOTUS.”
The brief describes the history of the State of Maine backing up under court rulings against it. First, in 1981, the state prohibited aid to religious schools, Then, in light of the Espinoza decision, it allowed aid to religiously affiliated schools, but prohibited aid to schools that taught from a religious perspective. But the Carson decision prohibited that, holding that the new law operated ‘to identify and exclude otherwise eligible schools on the basis of their religious exercise.’ Under either formulation, ‘[t]hat is discrimination against religion’ that the Constitution prohibits.” While some states have removed state aid for private education in response to these court decisions, others like Colorado and Maine, have attempted to add requirements that burden religious exercise, principally antidiscrimination requirements.
As in Colorado, it is claimed in other states that by fighting discrimination, educational opportunity is promoted. But by severely restricting the ability of religious schools to participate in funding programs, these laws in fact inhibit those very goals. Indeed, the demands states like Colorado make effectively prevent many religious schools from accessing vital resources offered to others—and directly threaten educational opportunities that cannot be replaced for many communities and the children they serve.
“Just as the Court rejected superficial efforts to cabin Trinity Lutheran and Espinoza to their facts, it must do so again here. And it must make clear that the First Amendment offers no less protection against religious discrimination that is accomplished covertly.”
The “calling to religious education is shared by many other faiths [than the Catholic], including other minority religions whose schools have been vital to their very preservation … Transmitting Jewish values through education,” for example, “is one of the central and timeless imperatives captured in Judaism’s most sacred texts.” The amici said that “laws like Colorado’s threaten to deny religious communities access to these schools by effectively forcing many of them out of public-support programs. The central purpose of a religious school is to integrate faith with learning.” Indeed, “educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of . . . a private religious school.” (Quoting Carson)
“To pursue a religious educational mission, a school must be able to make these decisions in accordance with that religion. A religious school cannot simply refrain from making the faith-based choices that states like Colorado now deny it.” Discriminating against faithful religious people treats them as “second-class citizens” and limits educational opportunities
Orthodox Judaism has detailed religious requirements, and could be greatly affected by a religious freedom standard respecting only religious status, but not religious practice. The Union of Orthodox Jewish Congregations submitted a brief in which it argued that “[F]or modern Orthodox Jews, enrolling their children in a dual curriculum Jewish day school is ‘virtually mandatory … The Orthodox Union is concerned that if the [Tenth Circuit] decision below is permitted to stand, it would license government to condition public benefits on the surrender of church autonomy—a rule that would perpetuate discrimination against minority faiths and greatly burden faiths such as Orthodox Judaism that rely on government funds to address acute threats of antisemitic violence and terrorism.”
The View of the Solicitor General
A brief from the Solicitor General for the United States observes what others did, that religious schools are being forced to choose between religious exercise, which is the reason for their existence, or public benefit. It also points to the recent decisions, Mahmoud v. Tayler, Carson v. Makin, and Fulton v. City of Philadelphia which are exceptions to the Smith decision, and in at least two, secular exemptions mandated religious exemptions (or even the possibility of secular exemptions in Fulton). “Allowing schools to create bespoke preferences is the antithesis of general applicability.” The Solicitor General noted that Smith said that the Sherbert v. Verner (1963) decision (which applied strict scrutiny to religious liberty claims) still applies in public benefits cases (which the St. Mary Parish case is, and which it should be added, have individualized exemptions), although not in criminal law. In any case, “Colorado’s law is not generally applicable, it falls outside of Employment Division v. Smith … and triggers strict scrutiny.” Also, “[G]overnment regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.”
Additional briefs discussed the lack of general applicability in the UPK program, and a related case from sixteen years ago, Christian Legal Society v. Martinez(2010), which also presents the issue of corporate religious liberty. These briefs will be reviewed with concluding remarks in a subsequent article
More from IRD:
Clarifying Free Exercise for Religious Schools – Part 1
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