Supreme Court heads towards forcing states to subsidize anti-gay bias – People’s World

WASHINGTON—In 1891, a Massachusetts town fired policeman John McAuliffe for his involvement in local politics. McAuliffe asserted his free-speech rights. But the court dismissed his case. McAuliffe “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” 

For generations, courts upheld the government’s right to condition public benefits, such as a job, on recipients’ surrendering their constitutional rights. In the 1960s, the U.S. Supreme Court reversed course. Governments could no longer force their employees to forfeit their constitutional rights as the price of a job. 

Courts later expanded the prohibition against “unconstitutional conditions.” Governments can no longer require those who receive public benefits to surrender their constitutional rights—at least not always. 

Colorado’s Universal Preschool (“UPK”) program guarantees free preschool to every eligible four-year-old. Parents can choose a religious or secular preschool. But to get the subsidy, all preschools must surrender the right to discriminate based on race, sexual orientation, and other traits. Citing religious freedom under the 1ST Amendment, the Denver Catholic archdiocese wants its preschools to get the Colorado subsidy, but also to exclude four-year-olds whose parents are gay, lesbian, bisexual, or transgender. 

In a 1990 case involving Native Americans fired for using peyote in a religious ceremony, the Supreme Court held that denying them unemployment compensation did not violate the Constitution’s protection of the free exercise of religion. The free exercise clause, the court ruled, does not protect violating a “neutral law of general applicability”—here, the state’s drug law—even if the law burdens religious practices. 

Since then, Republican Presidents George W. Bush and Donald Trump have appointed a majority of the Supreme Court. And following those appointments, the court has gradually undercut the holding of the 1990 peyote case, carving out, for religious institutions, exception after exception from laws of general applicability. Its latest opportunity, St. Mary Catholic Parish v. Roy, came to the court November 3. 

Nicholas Reaves, of the Becket Fund for Religious Liberty, argued the case for the archdiocese. Reaves first claimed the UPK program lets preschools exclude students for “a variety of different reasons,” just not for religious reasons. Colorado’s UPK program is therefore not truly “neutral,” and differs from the law in the 1990 peyote case. 

Justice Brett Kavanaugh agreed. For him, the UPK program discriminates against religious reasons to exclude students. Both Chief Justice John Roberts and Justice Clarence Thomas took the same position: The UPK mandate has the same effect as outright exclusion of Catholic preschools—an exclusion the court, in 2022, held unconstitutional. 

More than just the same effect, Justices Samuel Alito and Amy Coney Barrett seemed to argue. Justice Coney Barrett even suspected Colorado understood its nondiscrimination mandate would push preschools out of the program. She noted a New York Times op-ed suggesting that states avoid the 2022 case by requiring subsidized schools to admit all students, regardless of sexual orientation. 

Rejecting the claim that Colorado discriminated against Catholic preschools, Justice Ketanji Brown Jackson noted Colorado’s civil-rights laws apply to all UPK recipients. 

Indeed, some Catholic schools accept state funding and obey Colorado’s civil-rights laws. In actuality, she told Reaves, “You’re asking for a special rule for religious schools.” That special rule would threaten school-funding programs nationally. States unwilling to subsidize bigotry might stop paying tuition at private and parochial schools. 

Moreover, Justice Jackson added, the UPK program doesn’t actually permit preschools to exclude 4-year-olds for secular reasons. Rather, it just permits preschools to specialize in, and therefore prefer, certain 4-year-olds, such as those with disabilities, or those whose parents will participate in school activities. No UPK provision allows preschools to exclude an entire category of 4-year-olds. 

Bigots have long used religion as an excuse for discrimination of all types, including racial discrimination. Asked Justice Sonia Sotomayor, wouldn’t the archdiocese’s argument permit excluding children based on their race, ethnicity, or national origin? 

Race is different, countered both Reaves and Justice Kavanaugh. So did Sarah Harris, of Donald Trump’s Justice Department. There aren’t “rampant numbers of groups claiming religious exceptions based on racial views.” 

But bigotry’s frequency has never before been thought to determine its degree of constitutional protection. The Becket Fund’s Reaves also argued Catholic preschools could require, as a condition for admission, that parents agree with Catholic teachings, including teachings against same-sex marriage. Few same-sex parents would sign such an agreement. For any that did, the Catholic preschool could reject them for insincerity. 

This led several Justices to question the case’s importance. When Colorado Deputy Solicitor General Helen Norton rose to defend the UPK mandate, both Justices Barrett and Alito questioned whether any Catholic preschool in Colorado ever turned away an applicant because of sexual orientation or gender identity. Justice Kavanaugh noted Colorado has 2,000 preschools and only 34 Catholic preschools, an average of two preschools within three miles of every Catholic preschool. 

Norton responded that parents have multiple reasons to choose a particular preschool. Parents may need a preschool that will take all three of their toddlers, or that opens at 7 a.m. Colorado’s interest, said Norton, is to “ensure equal opportunity,” not just “some opportunity.” More fundamentally, to stress practical obstacles from bigoted exclusion misunderstands the harm it causes, especially in early-childhood education. 

Excluding children on the basis of sexual orientation causes the same harm as segregation on the basis of race. As the Supreme Court said in Brown v. Board of Education, segregated groups understand that exclusion denotes inferiority. “A sense of inferiority affects the motivation of a child to learn.” 

In an attempt to distinguish the 1990 peyote case, the Becket Fund’s Reaves called for a special rule in public-benefits cases. Criminal laws, by contrast, serve especially important state interests, much more important than interests served by public-benefits programs. The state must therefore make religious exceptions for public-benefit recipients; it need not make for those with religious objections to criminal laws.

Not only does this argument ignore the setting of the peyote case—unemployment compensation—but, as Justice Kavanaugh observed, it introduces an “anomaly” that “seems inverted”: It would impose greater constitutional limits on conditions in public-benefits programs than on outright criminal prohibitions. The state could put you in jail for doing something it couldn’t force you to disavow as the price of receiving a public benefit. 

Echoing the 1891 McAuliffe case, Justice Jackson noted participation in a public-benefits program is entirely voluntary. A private entity has the right to discriminate. “[B]ut if they’re accepting public benefits voluntarily,” they give up that right. Or, as a brief joined by the Service Employees put it, “Preschools that do not wish to participate may operate independently without receiving state funding and without complying with UPK’s requirements.” They may have a right to discriminate, but they have no right to receive state funds. 

A decision is expected in early summer. 

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