Colorado Can’t Seem to Stay Out of Constitutional Trouble

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Less than two weeks ago, the U.S. Supreme Court agreed to hear yet another First Amendment case arising out of Colorado. St. Mary Catholic Parish v. Roy involves a law that excludes Catholic and other religious institutions from participating in the state’s so-called “Universal Preschool Program,” or UPK.

UPK pays for parents to send their children to a Colorado preschool of their choice, public or private. The goal is to expand educational choice, allowing parents to choose from a broad range of providers based on their unique needs and values. Religious schools can participate in UPK, but only if they agree to what Colorado calls a “nondiscrimination” requirement, which tells schools they must provide families an “equal opportunity” to enroll regardless of race, religious affiliation, sexual orientation, gender identity, income level, or disability.

Though this sounds like an “everybody welcome” rule, it is not. In practice, the state grants numerous exceptions, allowing preschools to prefer “children of color,” “the LGBTQ community,” low-income families, and children with disabilities, to cite just a few examples. But there is one exception that Colorado will not grant: a religious one.

So, a Catholic preschool that wants to prefer Catholic families cannot participate in UPK. The same is true of evangelical Christian, Orthodox Jewish, and other providers who are religiously selective about the families they enroll. Equally troubling, participating preschools cannot ask families to support the school’s religious views on sex, gender, and marriage. That, Colorado says, would be sexual orientation and gender identity discrimination.

Colorado portrays its rule as general and neutral. In reality, it specifically fences out providers of traditional religious faith, unless these schools surrender what their faith teaches about crucial moral issues. As such, the state is also imposing a burden on religious families who want a preschool that aligns with their own faith and values. Either choose one that shares the government’s pro-LGBT views, or pay out of pocket.

Making people of faith pay more to choose a preschool that fits their family is not religious neutrality. It is religious discrimination. Cases like this will keep coming to the Supreme Court until it overturns its 1990 decision in Employment Division v. Smith, which allows the government to impose burdens on religious exercise as long as it’s pursuing a neutral policy that’s generally applicable.

The Court will not be reconsidering Smith in this particular case, but it has been steadily chipping away at the precedent set by it. For example, in recent cases, the Court has clarified that the government can’t exclude religious practitioners from accessing public benefits on the same terms as everyone else. Just last year, the Court decided in Mahmoud v. Taylor that even neutral laws must give way to parents’ right to ensure their children’s religious education.

And, if you haven’t noticed, Colorado is on quite a losing streak in recent First Amendment cases. The Supreme Court has firmly rejected the state’s attempts to punish and coerce the speech of cake artists, web designers, and talk therapists in service of the state’s pro-LGBT agenda. So, St. Mary Catholic Parish v. Roy is yet another opportunity for the high Court to protect the rights of people and institutions of faith. Colorado is welcome to start adhering to the Constitution at any time. In the meantime, let’s hope and pray that this case will make them 0-4.

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John Stonestreet is President of the Colson Center for Christian Worldview, and radio host of BreakPoint, a daily national radio program providing thought-provoking commentaries on current events and life issues from a biblical worldview. John holds degrees from Trinity Evangelical Divinity School (IL) and Bryan College (TN), and is the co-author of Making Sense of Your World: A Biblical Worldview.

The views expressed in this commentary do not necessarily reflect those of CrosswalkHeadlines.

BreakPoint is a program of the Colson Center for Christian Worldview. BreakPoint commentaries offer incisive content people can't find anywhere else; content that cuts through the fog of relativism and the news cycle with truth and compassion. Founded by Chuck Colson (1931 – 2012) in 1991 as a daily radio broadcast, BreakPoint provides a Christian perspective on today's news and trends. Today, you can get it in written and a variety of audio formats: on the web, the radio, or your favorite podcast app on the go.