There was one significant surprise during the Supreme Court’s Tuesday argument in St. Mary Catholic Parish v. Roy, a case asking whether Colorado may require schools that accept state funding to treat LGBTQ families and students the same way they treat anyone else. For a brief moment, Chief Justice John Roberts seemed like he might break with his Republican colleagues and uphold Colorado’s policy.

St. Mary arises out of a program that provides state-funded preschool to all Colorado children. Families are allowed to choose which school they wish their young child to attend, and private religious schools are eligible to participate in this program. But state law also prohibits any school that receives this funding from discriminating on the basis of sexual orientation or gender identity.

The plaintiffs include Catholic-identified schools that wish to exclude the children of same-sex couples, but that claim they should nonetheless be funded by Colorado’s taxpayers.

In recent years, the Court has followed a consistent pattern in cases that pit religious conservatives against LGBTQ Americans — religious conservatives always win. As several justices noted during Tuesday’s arguments, the Court’s legal doctrines governing these cases are incoherent and often seem to call for illogical results. But the pattern still holds. When a religious conservative seeks an exemption from a state or federal law that prohibits anti-LGBTQ discrimination, this Court gives them the exemption.

As Roberts pointed out early in the St. Mary argument, these plaintiffs are asking the Court to reach beyond its previous precedents. In Carson v. Makin (2022), the Court required Maine to include religious schools in a tuition voucher program that, under Maine law, only funded secular private schools. But Colorado’s program includes religious schools. 

Colorado is perfectly willing to subsidize Catholic schools. It merely insists that those schools, like all other preschools in Colorado, must treat gay and trans people the same way they treat anyone else if they receive taxpayers’ money. If a Catholic school (or any other religious school, for that matter) does not wish to comply with this condition, it may still operate. It just won’t receive money from the state.

Yet, while Roberts’s first questions during Tuesday’s argument suggested that he might consider voting in favor of Colorado, none of his five Republican colleagues appeared open to that position (although Justice Amy Coney Barrett did ask some questions suggesting that she may hand Colorado a narrower loss than the Court’s right flank would prefer). And, by the end of the argument, even Roberts seemed sympathetic to the orthodox Republican position that, when LGBTQ rights conflict with religious conservatism, the religious party wins. 

This suggests that soon, taxpayers will be required to fund discriminatory institutions, even in states where such discrimination is forbidden by law.

The two partisan factions on the Supreme Court live in completely different universes in religion cases

Roberts’s early question aside, one thing that was absolutely clear from Tuesday’s argument is that the Court’s Democratic minority and its Republican majority bring completely different values to the table in cases like St. Mary.

All three of the Court’s Democrats expressed concern that, if their Court doesn’t someday draw a line in the sand and say that religious conservatives do not receive literally any accommodation that they ask for in federal litigation, then that will lead to immoral results and prevent important American institutions from functioning.

Justice Sonia Sotomayor, for example, asked why, if religious schools are permitted to discriminate against gay people, aren’t they also allowed to discriminate against Black people? What if, for example, someone who sincerely believes that racial segregation is mandated by God opens up a school that excludes Black children?

Similarly, Justice Ketanji Brown Jackson asked about a hypothetical school which teaches that only boys, and not girls, should be taught mathematics. Under the plaintiffs’ legal theory in St. Mary, why wouldn’t this school be entitled to an exemption from state laws requiring all schools to teach certain subjects, including math, to all students?

Meanwhile, Justice Elena Kagan asked deputy US solicitor general Sarah Harris (the Trump administration, naturally, supports the anti-LGBTQ side in St. Mary) whether ordinary public schools would be subject to a rule requiring states to accommodate the religious beliefs of anti-LGBTQ parents. When Harris indicated that they would, Kagan then asked why the parent of a public school student couldn’t demand that their child be educated in a different classroom than the children of same-sex parents — or demand some other accommodation that public schools would find it very difficult to provide?

But the Republican justices dismissed these concerns, with many of them suggesting that religious objectors may demand an exemption from nearly any law. The dominant view among the Court’s Republicans appeared to be that any law that imposes obligations on a religious conservative must survive a rigid legal rule known as “strict scrutiny,” the most skeptical level of review that courts apply in constitutional cases.

Nearly all government policies that are subjected to strict scrutiny fail, so, if strict scrutiny applies in cases like St. Mary, that would mean that religious conservatives nearly always prevail. Though, in fairness, Eric Rassbach, the plaintiffs’ lawyer in St. Mary, did suggest that a ban on race discrimination might be the rare law that can be enforced against religious schools. So, under the Republican justices’ approach, religious schools may not be allowed to exclude Black students. But they’d have free rein to violate many other laws.

With the exception of Roberts, the only Republican on the Court who seemed open to a more nuanced rule than simply applying strict scrutiny in every case was Barrett. And it’s not like Barrett was particularly sympathetic to the state. 

Still, Barrett did float a way to decide this case that may be slightly narrower than many of her Republican colleagues’ views. Briefly, Barrett drew a distinction between a school that outright forbids the children of same-sex parents from attending, and a school that allows these children to attend, but only if the parents sign a statement denouncing homosexuality and agreeing to restrictions on their personal conduct — such as never appearing together at the school at the same time, so that no one can see that one of the school’s students has two parents of the same sex.

Barrett seemed to suggest that perhaps the Court could uphold Colorado’s ban on absolute exclusion, while simultaneously permitting religious schools to impose these humiliating obligations on same-sex families. As a practical matter, however, it is unclear how this rule would differ from one endorsing total exclusion of gay parents, because what parent would agree to these restrictions?

In any event, after Tuesday’s argument, it is hard to imagine the Court handing Colorado, or same-sex parents, anything that resembles a real win. Whether the Court endorses allowing schools to exclude same-sex parents entirely, or embraces something like Barrett’s rule, the practical result is likely to be the same. Religious conservatives get what they want; LGBTQ Americans must yield to the interests of those conservatives.

Author: Source Author

Source: Vox.