The Denver Archdiocese cannot take state funds and discriminate
By Adele Rutherford · Reporting from Atlanta ·
The Denver Archdiocese argues that Colorado's non-discrimination rules for pre-K funding violate religious liberty, but the state may rightly condition public money on equal access.
The Denver Archdiocese is wrong. It believes it can accept public money while ignoring the public's rules on equality. Colorado's universal pre-K program provides a $6,300 annual benefit for each enrolled child. This money comes from a tobacco tax. The state requires that participating schools do not discriminate based on race, religion, sexual orientation, or gender identity. The Archdiocese wants the check, but it refuses the condition.
The terms of the public contract
The Archdiocese, represented by the Becket Fund for Religious Liberty, claims this is a First Amendment violation. They invoke the Free Exercise Clause, which prevents the government from prohibiting the free exercise of religion. Mark Rienzi of the Becket Fund argues that Colorado is only excluding schools with beliefs the state dislikes. He claims schools must require parents to support Catholic teachings.
This is a clever argument, but it fails. The state is not excluding the Catholic faith. It is excluding a specific practice: the denial of service to children of LGBTQ parents. As reported by SCOTUSblog, Colorado will not provide exemptions from these rules. The state is not telling the church how to pray. It is telling a contractor how to spend public funds.
The Becket Fund for Religious Liberty is the architect here. They have spent decades dismantling limits on public funding for religious institutions. They want to transform a government subsidy into a right that exists regardless of the rules.
The mechanism of the benefit
The strongest case for the schools is that the government cannot penalize a religious entity for its identity. In Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), the Court held that denying a playground grant based on religious status was illegal. Similarly, Carson v. Makin (2022) ruled that tuition assistance programs cannot exclude religious schools.
But these cases concerned the status of the school, not the conduct of the school. There is a sharp difference between being a religious school and being a school that discriminates.
This is the mechanism of Bob Jones University v. United States. In 1983, the Court ruled that the government could revoke the tax-exempt status of a university that barred interracial dating. The state may condition a public benefit upon the recipient's adherence to a compelling government policy against discrimination. The eradication of discrimination is a compelling policy.
The Court has recently protected religious actors in other ways. Fulton v. City of Philadelphia (2021) and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018) shielded specific religious exercises from state rules. However, those cases did not grant a license to take public funds while ignoring the public's laws.
The cost of the shortcut
The Archdiocese claims the state's rules are an attack. Archbishop James R. Golka wrote in the Denver Post that enrollment has dropped by 20%. He notes that two preschools have closed. But the record suggests the harm is self-imposed.
Scott Elmer, the superintendent of Catholic schools, admits it is "very rare" for LGBTQ parents to try to enroll. If the conflict is rare, the "crisis" is a legal strategy, not a practical one. The real harm falls on the citizens. The Washington Post reports that Erika Nagle had to forgo the universal pre-K assistance because she chose St. Mary Catholic Parish.
The state is not forcing the Archdiocese to change its theology. It is simply refusing to pay for the privilege of excluding citizens. Many religious schools already participate in this program. They have found that they can teach their faith and still follow the law.
The Court may rule that Colorado cannot exclude these schools solely because of their admissions policies. Such a ruling would suggest that conditioning public educational benefits on the waiver of religious exercise violates the First Amendment. That would be a failure of logic. If the Archdiocese cannot abide by the law, it cannot abide by the check.