Religious schools are back at the Supreme Court, in the next blockbuster church–state case. After a decade of decisions barring governments from excluding religious institutions from public-funding programs, St. Mary Catholic Parish v. Roy will move the fight to new—and far murkier—terrain: what to do about conditions imposed on government funding that collide with schools’ religious commitments.
The case centers around Colorado’s universal pre-K program, which provides families with state-funded preschool for their children at a public or private provider of their choice. Religious schools are in principle eligible to participate. However, to receive funding, schools must comply with a set of state-imposed “quality standards,” including a requirement that they offer every child an equal opportunity to enroll regardless of characteristics like religion, sexual orientation, gender identity, income level, or disability.
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Some Catholic preschools have sought a religious exemption from this requirement. They say that, as part of their religious mission, they seek to enroll families who are willing to support the school’s faith-based teachings, including on questions of sex and gender, and thus could not accept families who do not support those teachings. When the state government refused to grant an accommodation, the schools filed suit, alleging Colorado had violated their First Amendment rights.
Until recently, the Supreme Court understood the First Amendment either to prohibit the inclusion of religious schools in government funding programs or to permit states to exclude them. But over the past decade, the Court has made clear in cases like Trinity Lutheran Church of Columbia, Inc. v. Comer and Carson v. Makin that once the government makes a public benefit generally available, it cannot exclude religious institutions simply because they are religious or because they engage in religious exercise.
Simple enough. But states quickly adapted. Rather than excluding religious institutions outright, they attached conditions to funding that would work to achieve the same outcome.
In the wake of Carson v. Makin, for example, Maine revised its tuition-assistance program to require participating schools to comply with its “unlawful education discrimination” rules. Or consider the new federal Education Freedom Tax Credit, which provides tax incentives for contributions to scholarship-granting organizations that fund students’ attendance at schools of their choice. Already, states like Virginia and Colorado have explored whether—and how—to impose “nondiscrimination” conditions on participating schools.
Thus, the core question raised in St. Mary’s: what are the constitutional limits on the kinds of conditions government may impose on religious schools as the price of participating in funding programs?
Step one in answering that question is to remember that conditions are still subject to the First Amendment, which prohibits laws that target religion. For that reason, if a condition is adopted intentionally to exclude a particular religious school, a particular religion, or religious schools more generally, from a funding program, that condition is unconstitutional.
But the prohibition on targeting religion has a second component. Over the last several years, the Supreme Court has made clear that the government is not only prohibited from acting with animus toward religion; it also may not treat religious institutions less favorably than other similarly situated institutions. This second requirement is front and center in the St. Mary’s litigation.
The problem arises in how Colorado applies its nondiscrimination rule. On the one hand, the statute requires participating preschools to offer every child an equal opportunity to enroll, regardless of characteristics like religion, sexual orientation, or gender identity.
At the same time, the universal pre-K program rules authorize various enrollment preferences, ranging from disability accommodation to multilingual placement. A final, broad “catch-all” preference allows, according to the testimony of the program’s director, providers to favor enrollment for a child based on “the child and/or family being part of a specific community.” This includes foster-care children, children of veterans, children of color, and members of the LGBTQ community. It even allows schools to operate exclusively for “gender-nonconforming children.”
Given this context, Colorado’s program is hard to defend. If a religious school may not prefer families who share its faith, why can other schools prefer students based on race or sexual orientation?
The Tenth Circuit, in upholding the program, sidestepped this problem by claiming that the catch-all preference is “merely a way of adjusting the algorithm”—whatever that might mean. But the legal reality, likely to be addressed by the Supreme Court, is that this sort of asymmetrical treatment violates the First Amendment.
There is another implicated limit, one derived from the First Amendment’s protection of church autonomy. The Constitution has long been understood to safeguard the right of religious institutions, as the Court has put it, to “decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” That includes matters concerning “the conformity of the members of the church to the standard of morals required of them.”
For religious schools, this autonomy has concrete implications. It includes the selection of those who will teach the faith, the authority to determine the content of religious instruction, and the ability to establish and enforce criteria for membership—which would presumably translate to the selection of students.
To be sure, a condition on funding does not formally compel a school to relinquish that autonomy; the school may always choose not to participate. But that formal choice does not resolve the constitutional problem. As the Court has repeatedly held, the government may not condition access to a generally available public benefit on the surrender of a constitutional right. This “unconstitutional conditions” doctrine ensures that government does not use its spending power to accomplish indirectly (by conditioning funds) what it cannot do directly (by outright prohibiting protected conduct).
For that reason, Colorado cannot require religious schools to trade away their church autonomy rights as the price of entry into the universal pre-K program. That presumably includes the right of religious schools to select their students according to religious criteria.
The First Amendment prohibits states from adopting conditions that target religion, whether by attempting to block religious participation outright or by treating religious institutions less favorably than similarly situated secular ones. It also bars the government from using its spending power to require the surrender of constitutional rights as the price of accessing a generally available public benefit. Holding funding conditions to these constitutional constraints is the only way to ensure that religious institutions have genuine access to public programs—rather than access in name only.