Tenth Circuit ruling in CO school case is a major setback for religious freedom

The September 30th ruling, St. Mary Catholic Parish in Littleton v. Roy, is a major setback for religious freedom.

In the most far-reaching part of its order, the Tenth Circuit Court unanimously ruled that two Catholic preschools in Colorado were ineligible to participate in the state’s voluntary UPK or universal preschool program because their officials were unwilling to comply with its nondiscrimination requirement to “provide eligible children an equal opportunity to enroll and receive preschool services regardless of…sexual orientation [and] gender identity.”

I will briefly review the facts and judicial history in St. Mary before reflecting on its significance for religious liberty.

St. Mary Catholic Parish in Littleton v. Roy

Litigation arose when officials in two Catholic parishes and their preschools, along with parents who hoped to enroll their children in a UPK-eligible preschool, challenged a provision in state law that excluded them as violating their First Amendment rights to the free exercise of religion.

The program, which was adopted in 2022, reimburses institutions for providing at least fifteen hours of free preschool per week for eligible children regardless of their races, ethnicities, religious affiliations, sexual orientations, and other characteristics or those of their families. In its first year, the program covered almost 40,000 youngsters or about 60 percent of Colorado’s eligible four-year-olds, including forty faith-based preschools caring for more than 900 children.

After the federal trial court directed the schools to admit all students regardless of their sexuality, the Tenth Circuit agreed that the UPK’s antidiscrimination provision did not violate the First Amendment. In its review, the panel differentiated three recent Supreme Court cases (discussed below: Trinity Lutheran Church of Columbia v. Comer, Espinoza v. Montana Department of Revenue, and Carson v. Makin), agreeing that states cannot deny generally applicable benefits to recipients solely because they are religious.

Instead, the Tenth Circuit agreed with Colorado that the law was neutral toward religion and generally applicable. The panel observed that “[w]hile the Constitution protects religious freedom, courts have long recognized the simple reality that the government must be able to enforce the law equally against everyone, no matter an individual’s beliefs.”

The panel next examined Masterpiece Cakeshop v. Civil Rights Commission, in which the Supreme Court found that Colorado officials violated a baker’s right to the free exercise of religion by displaying overt hostility to his belief that prevented him from preparing a cake for individuals entering a “same-sex union”. Without explaining how, the court argued that, unlike Masterpiece Cakeshop, officials “made every effort to encourage faith-based preschools to participate (short of violating state law by granting exceptions to the nondiscrimination requirement).” In fact, the court declared that “[t]he program is a model example of maintaining neutral and generally applicable nondiscrimination laws while nonetheless trying to accommodate the exercise of religious beliefs.”

Yet, the court ignored that the law would have trammeled the schools’ beliefs on sexuality by attempting to compel them to act in ways inconsistent with their faiths.

The court next rejected the preschools’ assertion that the antidiscrimination provision was subject to strict scrutiny, the most stringent form of constitutional analysis when governmental action restricts fundamental rights such as the free exercise of religion. When courts apply strict scrutiny, because narrowly tailored state actions must be justified by compelling interests, they typically fail. Instead, the court viewed the provision as subject to rational basis analysis under which a state’s action is permissible “so long as it is rationally related to a legitimate government purpose” such as ending discrimination.

Without explicating how educators respected the religious freedom of the preschools, the court simply reiterated that because “Colorado’s UPK program went to great effort to be welcoming and inclusive of faith-based preschools’ participation. The nondiscrimination requirement exists in harmony with the First Amendment and does not violate the Parish Preschools’ First Amendment rights.”

Reflection and analysis

Four aspects of St. Mary negatively impact religious freedom.

First, as difficult as it is to make sense of the actions of Colorado state educational officials, the attitude of the Tenth Circuit, which described the preschools’ critiques of the law and the director implementing it “as mere doublespeak’” is at least as troubling. It is unclear why the court joined officials in demonstrating a clear antipathy, even hostility, toward the Catholic preschools and parents.

It is also perplexing why the Tenth Circuit downplayed the trilogy of cases on aid in which Chief Justice Roberts authored the opinions. In 2017’s Trinity Lutheran, determining that Missouri could not deny a Lutheran preschool the opportunity to participate in a program to purchase rubber playground surface materials made from recycled tires, Roberts emphasized that “the exclusion of Trinity Lutheran Church from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”

Three years later, in Espinoza, the Court invalidated Montana’s constitutional prohibition of public aid to “sectarian schools” because it lacked a compelling governmental interest. Then, in 2022’s Carson, the Court invalidated a Maine statute excluding “sectarian” schools from a program providing tuition assistance to parents in districts lacking secondary schools as violating the Free Exercise Clause because it was neither neutral toward religion nor allowed parents to send their children to the schools of their choice.

According to the Tenth Circuit, these cases “are different from the nondiscrimination requirement in Colorado’s UPK statute” because it “is not attempting to prohibit funds from being used for religious purposes.” Considering that Colorado excluded both preschools from the program, this is at best a distinction without a difference because officials essentially discriminated against Catholics by denying them funds they would have used to educate children from a Catholic perspective. How was this not a religious purpose?

The second troubling aspect concerns perceptions of Catholics who are trying to live out their faiths, as the court acknowledged that “[m]any faith-based preschools—including Catholic preschools under the Catholic Charities of the Archdiocese of Denver–currently participate in UPK.” That is, in light of the court’s observation, Catholic leaders run the risk of scandalizing faithful members of their flocks by complying with the antidiscrimination provision that is at odds with Church teachings. As such, it is perplexing that Catholic leaders were not more supportive of the two schools that refused to accept the provision because it might have forced them to violate Church teachings on sexuality.

Third, it is problematic why supporters of a “live and let live” approach are unwilling to respect diverse religious perspectives by trying to compel Catholics to violate their beliefs on sexuality. Colorado officials lost sight of the fact that the free exercise of religion applies equally to all Americans, who should be able to live as they wish without being accused of discrimination.

The fourth concern addresses why parents would consider sending their “gender-nonconforming” children to preschools whose values are so inconsistent with their own beliefs and lifestyles, regardless of the quality of their programming. Plus, how many parents are raising preschoolers who can truly identify independently as transgender?

Finally, as reflected in Masterpiece Cakeshop and a second case the Tenth Circuit glossed over, Creative 303 v. Elenis, Colorado officials have a poor record of protecting religious freedom. In Creative 303, the Supreme Court reasoned that the Civil Rights Commission violated the rights of a Christian wedding website designer by attempting to force her to violate her beliefs by offering her services to a same-sex couple.

In both Masterpiece Cakeshop and Creative 303, the Supreme Court chastised Colorado’s Civil Rights Commission for trying to compel Christians to communicate messages inconsistent with their faiths. Accordingly, it is difficult to see how the actions of Colorado officials in St. Mary differ significantly, as they ignored the preschools’ religious rights by seeking to order them to violate their deeply held beliefs by accepting students whose lifestyles are incompatible with Catholic teachings. While it is unclear whether the preschools will appeal to the Supreme Court, even if they do, it is doubtful that officials in a state as left-leaning as Colorado will learn to respect religious freedom.