.png)
The Next Stage in the Fight for Free Exercise of Religion
By Trevor Esper
Carson v Makin, decided in 2022, helped restore the Free Exercise Clause of the First Amendment to its original meaning. At the time, Maine had started a program to assist with private school tuition for children who did not live near a public school. However, the program excluded religious schools even though they met all the other requirements. In Carson, the court ruled that a state-sponsored tuition assistance program that paid for private schools only if they were nonreligious violated the First Amendment. The Court stated that excluding religious organizations from publicly available resources solely because of their religious identity is discrimination on its face and violates the Free Exercise Clause, because the Free Exercise Clause protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.”
However, Carson v. Makin did not end discrimination against religious organizations. Many states have now moved away from an outright ban on religious organizations participating in generally available government programs; a new trend is to prohibit organizations that hire or provide programming in a “discriminatory” way, effectively banning the same religious organizations that the Free Exercise Clause protects. And at least in some instances, courts are now upholding these nondiscrimination requirements that effectively prohibit religious groups from accessing public welfare programs when they refuse to sacrifice their religious beliefs in order to participate.
One such case is St. Mary Cath. Par. in Littleton v. Roy, in which the 10th Circuit decided that forcing Catholic schools to accept children of LGBT couples into their preschool was not a violation of the Free Exercise Clause, as the nondiscrimination requirement was neutral and generally applicable regardless of religious status. In Colorado, the state implemented a new program that paid for preschool attendance and then launched an online website that allowed schools to set preferences, enabling students to be paired with schools that best fit their needs. One issue with the preference system was that it allowed schools to request new preference options that were not part of the standard options, provided they did not violate the nondiscrimination requirements. One of the state’s requirements is that a school cannot exclude a student based on religion, sexual identity, race, or nationality. The program, however, allows for “gendered” schools, such as all-boys or all-girls schools. St. Mary Catholic Parish and a few parents who were excluded from the program because of their religious beliefs then sued, arguing that forcing the school to accept students who came from same-sex households was a violation of the Free Exercise Clause. The court disagreed for several reasons and ruled in favor of the state.
The first point the court made, the one most relevant to the continued battle for proper Free Exercise rights, was that this case differs from Carson because it does not prohibit participation by religious schools outright, as the Maine law in Carson did. However, Carson did not hold that a law must include an outright ban to violate the Constitution; instead, the court said that laws coercing religious organizations violated the Free Exercise Clause. The state's requirement that St. Mary’s must accept children from same-sex households is coercive: the law requires the Catholic school to “look the other way” as parents, who are in same-sex relationships contrary to Catholic teaching, enroll their children in the school. The court then goes on to say that Boy Scouts of America v. Dale is not applicable because, in Dale, the man was a gay rights activist and allowing him to be a scout leader would “send a message” that, supposedly, allowing children from same-sex households would not. This logic does not hold up; the court’s reasoning ignores the fact that activities occur at schools when parents are present. Dale stands for freedom of association: requiring an organization to include individuals whose presence would send a message to the public contrary to its beliefs would fundamentally change that organization. The Supreme Court in that case relied on the fact that Dale was a proud gay rights activist in order to show that people would actively know that Dale was a practicing homosexual. A same-sex household being present at school functions sends the same message that the Court was concerned about in Dale.
It is worth noting that not all schools agree on how to handle accepting or rejecting students who come from same-sex households or other situations that do not align with the school’s faith. While schools like St. Mary’s and St. Agatha’s in Portland reject students who come from these types of homes, other schools like those in the Archdiocese of Boston may accept those students while ensuring parents understand the Catholic position on marriage and what will be taught to their children. The point is not that all schools must be like St. Mary’s or those in the Archdiocese of Boston. Bishops in different diocese have dealt with this issue in different ways, and will likely continue to do so, as their beliefs on how to handle these situations while upholding the Catholic social teachings vary. The point is that the decision is properly made by the religious schools and churches themselves. To allow secular laws to replace the religious decisions of religious organizations is a violation of Church autonomy and the freedom of association.
While the 10th Circuit had multiple other reasons for ruling against St. Mary’s, another relevant one is how the court treated the exceptions to the Smith Test. The Smith Test states that when a state or federal law is neutral and generally applicable, and incidentally burdens a religious belief, then it does not violate the First Amendment. This same issue arises in Crosspoint Church v. Makin, and the court in this preliminary injunction decision ruled the same way. The court claims that Crosspoint failed to show there is actually a record of religious animosity: Maine, while Carson v. Makin was still being decided, changed their laws to include nondiscrimination as a requirement to participate in the state funding program and later limited their religious exemptions. The court in this case did not believe this was animosity towards religion, however, and again did not side with the plaintiff. The case is still ongoing, and the outcome may be different in the end. But as of now, the court is upholding the nondiscrimination requirements as constitutional, even though they clearly violate the religious schools' First Amendment rights.
Thankfully, there is a possible light at the end of the tunnel, as the 9th Circuit in Union Gospel Mission of Yakima Wash. v. Brown, has ruled a different way. This case is an employment dispute focused on the Church Autonomy Doctrine, under which the courts will not enforce employment nondiscrimination requirements on a religious organization when they concern a fundamental belief of that religion, nor will they question the sincerity of that belief. In most instances, as this case discusses, the Church Autonomy Doctrine is reduced to a ministerial exception that bars the government from enforcing nondiscrimination laws against churches only in the context of the employment of ministers. Yet that is only a small part of the doctrine; it does not encompass the whole of what the Church Autonomy Doctrine is meant to cover.
Union Gospel Mission has a policy of only hiring co-religionists, who are active in the faith and hold to the core tenets of its religion. After Washington state adopted a narrow nondiscrimination policy that prevented Union Gospel Mission from preferring co-religionists in hiring, the organization filed a pre-enforcement action. The organization did not want to hire anyone outside of their faith, especially those who do not hold to its tenets about sexual relationships and marriage. The 9th Circuit agreed with Union Gospel Mission and ruled that the Church Autonomy Doctrine applies to religious organizations' internal decisions essential to their mission. The court highlighted that this exception applies only to discrimination based on religious reasons. This decision from the 9th Circuit shows that a circuit split is forming regarding religious groups and their ability to make employment decisions based on their religious beliefs.
The 9th Circuit’s decision is crucial because it provides a more accurate understanding of what religious groups have always been allowed to do – hire according to their religious beliefs. The growing disparity in how circuit courts are treating the Church Autonomy Doctrine makes it more likely that the Supreme Court will weigh in on this issue in the near future. This case also provides groups like St. Mary’s with a legal framework to prevent states from forcing them to abandon their ideals in order to receive state funding. Courts have been ruling against religious schools after Carson by simply applying nondiscrimination regimes and claiming that no religious animosity is involved in such decisions. Yet in the Crosspoint Church case, Crosspoint told the court that Maine changed its laws while Carson was pending at the Supreme Court because the state knew it was going to lose. The Union Gospel Mission case presents another path for these groups, allowing them to bypass the employment nondiscrimination question by simply asking that the Church Autonomy Doctrine be applied to their religiously motivated hiring practices.
While this issue will likely continue to percolate for years to come, a circuit split is forming. It is likely that other circuits will either go the 9th Circuit route or the 10th Circuit route. Hopefully, this split will lead to clarity and a definitive ruling that religious organizations are allowed to make faith-based decisions without being hampered by aggressive “nondiscrimination” laws.
