The Supreme Court has agreed to hear a case filed by Catholic preschools in Colorado that claim the state violated their rights by excluding them from a state-funded program due to their admission policies concerning lesbian, gay, and transgender families, according to Newsweek on May 6.
This case is significant because it addresses whether states must provide public funding to religious preschool providers who do not comply with nondiscrimination requirements. The outcome could affect how states interact with private organizations in delivering public services.
Ryan Thoreson, an associate professor at the University of Cincinnati College of Law whose work covers legal regulation of gender and sexuality, told Newsweek that “the broad question posed in this case is whether the state of Colorado must provide public funding to religious preschool providers even though the providers say they will not comply with the program’s nondiscrimination requirements.” Thoreson said, “Since Employment Division v. Smith, decided in 1990, the Court has said that when a law like the nondiscrimination law is neutral and generally applicable, meaning that it applies to everyone and doesn’t single out religion, it is typically permissible under the First Amendment.” He added that this case has been a “target for years.”
According to Thoreson, while the court did not “expressly grant certiorari” on overturning Smith itself, it took up two questions: what kinds of exceptions can be granted on secular grounds before a law stops being generally applicable; and when courts should apply heightened review. Thoreson also told Newsweek that recently “the court has been increasingly supportive of religious litigants asserting the freedom of speech and the freedom of religion while downplaying the state’s compelling interest in requiring religious litigants to comply with protections for lesbian, gay, bisexual and transgender individuals.”
Thoreson said a broad ruling could mean whenever states partner with private groups for services and allow exceptions for secular entities, “religious entities [could] get an exception to discriminate against certain program recipients or decline to provide certain services.”