On Tuesday, the Supreme Court hears arguments in a case that pits the Catholic Church against taxpayer funded school programs for all 4-year-olds in Colorado. At issue is whether religious schools may refuse to admit the children of gay and trans parents in violation of a state law that bars discrimination. The first line of the Bill of Rights says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." As early as the founding of this country, Thomas Jefferson described the clause as creating a "wall of separation between church and state." The Supreme Court formally embraced that idea in the 1940s, making it the law of the land — until roughly 10 years ago.
That's when the court's new conservative majority made an increasingly dramatic doctrinal U-turn, focusing not on the separation of church and state, but on that second clause in the First Amendment: protecting the free exercise of religion. "It's literally the opposite of what the law was not that long ago. It is just a complete shift," says Michigan State University law professor Frank Ravitch, who has written extensively about the Constitution's religion clauses.
To cite just one example, the Supreme Court, by an 8-to-1 vote, ruled in 1983 that that Bob Jones University should lose its tax exempt status because it prohibited interracial dating and interracial marriage on religious grounds, and that constitutes racial discrimination that the government money may not support. That said, it's unclear if the court will reach a similar conclusion now. Because race has a "unique" place in U.S. history, contends professor Douglas Laycock, emeritus professor of law at the University of Texas at Austin and the University of Virginia.
"There's nothing like 250 years of slavery, civil war, 750,000 dead, three constitutional amendments. Nothing like that for any other group," he says. As for the Colorado case, Laycock acknowledges that the Denver archdiocese is discriminating, but he adds, "The question is whether that discrimination is a protected exercise of religion." Rather than focusing on separation of church and state, the current court instead has focused on the rights of religious groups when pitted against state and federal laws that ban discrimination based on race, sex, religion or other categories.
It's the sex part that has thrown a monkey wrench into Colorado's broad program aimed at ensuring that virtually all 4-year-olds in the state get a pre-K education. "The law really was about implementing a program that said we want every kid, no matter where you live, to be able to have access to universal preschool," says Steve Fenberg, who served as president of the Colorado state Senate when the pre-k program was enacted, complete with a $6,300 benefit for each child enrolled in the program every year, money that comes from a tobacco tax. To accomplish that, the state did something most other states have not.
It created a broad plan, including religious schools, as long as the schools abide by a state law that bars discrimination based on race, religion, sexual orientation or gender identity. Emily Sirota, a prime sponsor of the universal pre-K bill, emphasizes that the state wanted parents to have "a robust choice" about where their 4-year-olds would go to school. Indeed, she notes that the Catholic Church initially endorsed the program, and Catholic Charities continues to participate, along with other religious groups, including at least 35 Christian schools, one Muslim and three Jewish schools.
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