In our upcoming July gathering, we will preview a significant First Amendment clash, St. Mary Catholic Parish v. Roy, which addresses whether Colorado can exclude religious preschools from its universal preschool program if they decline to adhere to state non-discrimination mandates. To understand this dispute, it is helpful to look at the nineteenth-century history of public school funding and the origins of religious exclusion from public benefits.
During the mid-nineteenth century, as massive waves of Catholic immigrants arrived in American cities, the public school system was predominantly Protestant in character, featuring daily readings from the King James Bible. Catholic communities began to build their own parochial schools to preserve their faith. They requested a portion of public school funds to support their schools, sparking a fierce political backlash. In 1875, Speaker of the House James G. Blaine proposed a constitutional amendment that would explicitly prohibit the use of public funds for sectarian schools. While the Blaine Amendment failed at the federal level, over thirty states eventually adopted "Blaine Amendments" in their own state constitutions, drawing a firm line between public benefits and religious education.
For over a century, these state-level restrictions stood unchallenged. However, in the last decade, the Supreme Court has systematically dismantled them. In cases like Trinity Lutheran (2017) and Carson v. Makin (2022), the Court ruled that if a state chooses to fund a public benefit, it cannot exclude an otherwise eligible partner solely because of its religious status. The boundary of beneficence has shifted: the state's interest in separating church and state must yield to the Free Exercise Clause's protection against status-based discrimination.
This July, we will examine the next logical step in this legal evolution. In St. Mary Catholic Parish v. Roy, the Court must decide whether a state can exclude a religious partner not because of their *status* as a church, but because of their *conduct*—specifically, their hiring and admissions policies. We will debate whether this case represents a minor adjustment of precedent or a major redefinition of the boundaries between state-enforced equality and religious freedom.