Amicus Brief: St. Mary Catholic Parish v. Roy

In December, the Manhattan Institute joined a group of organizations on a brief supporting Supreme Court review on an important question concerning how states exclude religious educational institutions from funding programs. The Court has now agreed to hear the case, and MI has again joined those groups—the Notre Dame Education Law Project (headed by MI senior fellow Nicole Stelle Garnett), the Islam and Religious Freedom and Action Team, and the Jewish Coalition for Religious Liberty—on a brief arguing that the Court should put a stop to a recurring tactic used by states to deny funding to religious educational institutions.

In 2022, Colorado introduced a universal preschool program offering 30 hours of free education at public or licensed private preschools. However, the program’s “equal opportunity mandate” excludes certain religious preschools based on their faith-based policies—such as requiring bathroom use by biological sex and admitting only families who support their religious beliefs. This exclusion has created a funding disparity, forcing at least one Catholic preschool to close. The Archdiocese of Denver, two preschools, and a family sued, arguing religious discrimination. The district court ruled for Colorado, and the Tenth Circuit affirmed. 

The Tenth Circuit decision demonstrates a confusion in the circuits about important concepts in religious liberty cases. Our brief argues that the Tenth Circuit's decision doesn't work with existing Supreme Court precedents and allows governments to undermine religious practice through creative legislative drafting and novel procedures. Unfortunately, laws like Colorado's reflect a movement by hostile legislators to gerrymander public programs in ways to get around Supreme Court decisions. The Court should ensure that its cases and the First Amendment may not be evaded simply by clever legislative drafting. 

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Nicole Stelle Garnett is a senior fellow at the Manhattan Institute and the John P. Murphy Foundation Professor of Law at the University of Notre Dame.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.