Bad faith bargain
Date
11/09/2026
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Bad faith bargain
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WORLD Radio - Bad faith bargain
Legal Docket: Colorado says Catholic preschools are free to teach their faith, but must forgo public tuition assistance if they won’t accept state conditions that violate church teaching. One family argues that kind of forced choice is exactly what the free exercise clause of the First Amendment was designed to protect. WORLD’s Mary Reichard reports.
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NICK EICHER, HOST: It’s The World and Everything in It from WORLD Radio, celebrating 15 years. Today is Monday the 9th of November.
Thanks for making us part of your morning routine. Good morning. I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.
Today, another clash between newly created LGBT rights and religious freedom grounded in the First Amendment, another dispute arising from the state of Colorado—the case St. Mary Catholic Parish v Roy.
The conflict is around a state program offering taxpayer-funded tuition assistance, Universal Preschool, referred to as UPK.
Colorado offers families around $6,300 per year for preschool tuition at public schools, private schools, or religious schools.
EICHER: But to participate, schools must give families an equal opportunity to enroll, regardless of their religion, sexual orientation, or gender identity.
The conflict is not hidden away in some obscure legal clause. It’s right up front in black-letter text, “sexual orientation and gender identity”, in a preschool program, a clear conflict with Catholic doctrine on human sexuality.
REICHARD: The Archdiocese of Denver runs preschools that also ask enrolling families to support church teaching, as its education is holistic and includes the entire family to live accordingly.
Nicholas Reaves is lawyer for the Catholic schools:
REAVES: The Archdiocese of Denver schools exist to pass on the faith to the next generation. To do this, they ask all families who enroll to be open to and supportive of the church's teachings. Because of this sincere religious exercise, the State has denied Colorado families the ability to use Universal Preschool funding at Catholic schools.
EICHER: Colorado argues the schools can teach what they want. They just can’t get public money while violating state rules on nondiscrimination.
Not only did the archdiocese object, so did families.
Daniel and Lisa Sheley, parents of seven, sued as well.
For their family, they preferred Catholic preschools that don’t accept Colorado’s conditions—and the family was willing to forgo thousands of dollars in tuition assistance to ensure it. But legally, they contend the constitution plainly protects Americans from having to make that trade-off.
For Colorado to force the choice, they say, is an unconstitutional burden on their right to free exercise of religion under the First Amendment.
REICHARD: Colorado insists that it does not exclude religious education. It’s merely imposing a cost. The state’s attorney is Helen Norton:
NORTON: Colorado welcomes religious preschools to UPK. The only thing Colorado asks is that they comply with the same conditions that every publicly funded preschool must meet, religious and secular alike. UPK is neutral towards religion.
More than forty faith-based preschools took part in the funding program, including six Catholic preschools. So Colorado uses that as proof its policy welcomes religion.
The schools’ lawyer draws a distinction: Catholic Charities operates participating programs focused on serving families in need. These parish preschools focus on forming children and their families in the Catholic faith.
EICHER: The plaintiffs cite three Supreme Court precedents: in 2017, Trinity Lutheran v Comer. That case barred the state of Missouri from denying playground funding just because it was run by a church.
In 2020, Espinoza v Montana. That case struck down an exclusion of religious schools from a state scholarship program.
And from 2022: Carson v Makin. In that decision, the state of Maine was not allowed to deny tuition assistance to schools providing religious instruction.
REICHARD: So the Catholic schools argue Colorado is doing indirectly what those rulings prohibit directly.
Justice Neil Gorsuch asked about that line of cases:
GORSUCH: So Carson itself and Trinity Lutheran and Espinoza, we were just wasting our time for the last 10 years on those cases
REAVES: Well, you know, I'm not the one to -- to say that, Your Honor, but I -- I think, you know, the -- I think Maine seems to think that. They -- they seem to think they could get around it. I -- I tend to think that's the -- the situation.
GORSUCH: The Constitution tends to deal in substances, not in shadows and procedures.
EICHER: Colorado, though, says this is different. Maine expressly excluded religious education; Colorado permits it. What’s not permissible, the state says, is unequal treatment of kids in a publicly funded program.
Justice Elena Kagan challenged the schools’ lawyer on that distinction.
KAGAN: But Carson upheld a very different principle, which was you can’t treat religious institutions differently. That’s not the principle that’s at issue here. The principle at issue here is, do you have to treat them better?
REICHARD: There’s the core disagreement: Are Catholic schools asking for equal treatment, or for an exemption not available to other schools?
There’s another question, though: Does Colorado really apply its rules equally?
And that brings us to a much earlier ruling in a case called Employment Division v Smith, decided back in 1990.
Under that decision, the government may enforce laws that are neutral to religion and apply across the board, even when those laws happen to burden religious exercise.
EICHER: But when the government allows for exceptions for similar secular reasons while at the same time refusing religious exceptions? That shows the law is not generally applicable.
And that triggers the very highest level of judicial review: strict scrutiny. That phrase means the government has to show a compelling interest and that its policy is narrowly tailored to accomplish that interest.
REICHARD: The schools here point out Colorado makes all kinds of exceptions for secular activities and certain specialized interests, but it won’t accommodate religious admissions requirements.
Justice Brett Kavanaugh:
KAVANAUGH: For example, I notice one preference that's allowed, schools are allowed to have a preference for parents who will be more involved in the school.
NORTON: Yes.
KAVANAUGH: And that almost inherently discriminates against single-parent families, inherently discriminates against families with two-income parents in the real world….Or you have the -- the STEM school that, you know, someone's interested in something else, they're not going to -- they're going to be going to a different school or the vegetarian school, you can have a vegetarian school, but you can't have a Catholic school, you can't have a Jewish school.
Colorado says specialized education is not the same as keeping kids out of school based on protected characteristics.
Justice Ketanji Brown Jackson saw Supreme Court precedent in two separate lines of reasoning. Two different buckets, as she put it. First, no disfavoring religious entities when the state hands out public benefits. And second, if a state has a rule with exclusions, it can’t refuse to give an exclusion for religious conduct.
JACKSON: I think that this actually doesn't fit in either of those buckets, and that's what I'm worried about. I think you're asking us to do something more. In the first instance, this -- this religious entity would be treated better than everybody else who has to follow this rule. And in the second, the kinds of things you're talking about, the preferences that the -- Colorado has allowed is not similar. I mean, here, your schools want to discriminate by exclusion. Nobody else is allowed to do that.
EICHER: Colorado stuck to the notion that its rules protect kids and doesn’t punish faith. Justice Sonia Sotomayor pressed the school’s attorney on that:
SOTOMAYOR: Your -- let's get to the bottom -- I'm asking you a direct question. Your Catholic schools will reject a child merely because their parents are homosexual?
REAVES: I would say, if it's the sincere religious exercise of the Petitioner, then I think that would be permitted.
SOTOMAYOR: If it's a sincere religious exercise to exclude blacks, this principle would permit the exclusion of those black children?
REICHARD: Justice Sotomayor has conflated race and sexual practices before—and interestingly enough, in cases out of Colorado.
In 2022, the case 303 Creative v Elenis. That case involved Colorado and a Christian website designer. The state had a law that would’ve forced the designer to create custom wedding websites for same-sex couples despite her religious beliefs:
SOTOMAYOR: What’s the difference between that and “I don’t believe black people and white people should get married?”
And in 2017, the Masterpiece Cakeshop case. That was Colorado versus professional baker Jack Phillips. The state demanded that Phillips create custom wedding cakes for same-sex couples. Justice Sotomayor again bringing in race:
SOTOMAYOR: The problem is that America’s reaction to mixed marriages and to race didn’t change on its own.
EICHER: The schools’ lawyer cited the 1983 Bob Jones University decision. There, the court upheld a denial of tax-exempt status to a religious university that banned interracial dating on campus. In Bob Jones, the Court recognized the government’s compelling interest in ending racial discrimination in education. But that ruling tackled a different question: It didn’t give Colorado a justification for imposing SOGI requirements on Catholic preschools as a condition of receiving state funding.
REICHARD: Later, a dispute over what religious education requires arose. Justice Sotomayor pressed Deputy Solicitor General Sarah Harris, who argued in support of the schools.
SOTOMAYOR: Well, but we're not talking about changing what you teach, changing or requiring a changing of philosophy or belief. This is merely requiring people to accept anyone into their membership. What you're basically saying is we can exclude people merely because of exposure to them would cause us harm. That's really what you're saying.
HARRIS: Respectfully, no. That elides -
SOTOMAYOR: That is completely what you're saying….
HARRIS: The position in this case is that the religious exercise involved, as Petitioners spelled out, is requiring parents to agree with a school that they're going to adhere to tenets of the Catholic faith and act consistently with them to --as a core part of forming -
SOTOMAYOR: The parents, not the child. You can still teach the child what you want.
EICHER: Another issue arose: Is it just clever word play to call a rule neutral when the state knows some religious schools cannot accept it?
Here’s Justice Amy Coney Barrett, in an exchange with Colorado’s lawyer:
BARRETT:Explain what the difference is between that and then choosing to impose a condition that you know that those schools will be unable to agree to …
NORTON: Your Honor, there's no evidence of any animus or hostility in this case. Neither lower court found any such evidence. And, in fact, they held completely to the contrary, that UPK welcomes religious providers. Again, it chose to move to a program that included religious providers and it treats them alike.
BARRETT: Well, does it have to be animus? I guess I'm not assuming animus or animus against religion, but if you know that the effect of choosing that requirement will push out those with a contrary belief, how is that different? Just as a logical matter.
Justice Samuel Alito parsed the difference between discriminatory intent and discriminatory effect:
ALITO: So, when a state imposes a tradition --a condition that it knows certain religions cannot accept that -the only question that is presented is whether that was done with the explicit --with the intent to discriminate against those religions?
NORTON: Your Honor, this Court has never held that knowing the effect of an action establishes without more the government's intent to single out religion for disfavor, and such a holding would discourage government from the sorts of public/private partnerships that we have here.
Justice Brett Kavanaugh wondered why Colorado couldn’t find a way to accommodate both sides.
KAVANAUGH: Why not seek the win/win? I mean, I raised this in the Fulton oral argument, where there's a clash of rights, obviously, the free exercise right on the one hand, the same-sex marriage right recognized in Obergefell on the other, but there are 2,000 schools. There are only 34 Catholic schools. There are plenty of opportunities to respect the rights of the religious believers and respect the ability of LGBT parents to find among the 2,000 schools appropriate fit for their children, which could, in fact, be at one of the Catholic preschools depending on their --their own beliefs about that, and you avoid the clash. It seems like this is a --you know, a would-be solution in search of a problem that is unnecessary to create this clash.
REICHARD: Colorado says other factors matter as far as school choice: location, cost, and hours. Parents choose schools for practical reasons and not just on curriculum. That’s the “equal” it’s trying to implement.
But Justice Kavanaugh returned to the Court’s earlier assurances that recognizing same-sex marriage rights did not erase religious-liberty protections:
KAVANAUGH: One of the things that Obergefell and Masterpiece were very careful to say, though, that in recognizing a constitutional right to same-sex marriage, that the Court was also respecting the rights of people, particularly religious people who had religious beliefs that were different, and that it was important going forward as a country to make sure both rights were respected.
Whether the justices keep to that promise is the question.
And that’s this week’s Legal Docket.
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