CONSTITUTIONAL INTERPRETATIONS

On November 3, 2026, (Election Day in the United States), the Supreme Court will hear oral arguments of counsel to determine if a church’s  discrimination against homosexual or transgender people may disqualify it from financial assistance from the government under the United States Constitution. See St. Mary Catholic Parish v. Roy, Sup.Ct. docket number 25-581. The question arises under the First Amendment, which provides that

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .

The rights promised under the First Amendment were later extended to limit the authority of state legislatures as well as the Congress.[1]

Colorado’s legislature has adopted a program where it sends state money to both public and private pre-schools, to help cover the costs of giving all Colorado children the benefit of an early childhood education. However, the program’s statutes prohibit state funding of privately operated pre-schools that discriminate against homosexual children and transsexual children, or the parents/guardians of either set of children.[2] That prohibition has discouraged or prevented some Catholic pre-schools from participating in the program, on account of their theological beliefs against homosexuality and transgenderism.

Two recent Court precedents have created the Constitutional issue. In the 1990 case of Employment Division v Smith, 492 U.S. 872 (1990), the Court ruled that the First Amendment’s “Free Exercise Clause” did not prohibit Oregon from denying unemployment compensation benefits to individuals who had been fired from private employment on account of their illegal drug use during a bona fide religious observance at their place of worship. But then, in 2022, the Court ruled that the Free Exercise Clause did prohibit Maine from denying state financial assistance to religious schools in general. See Carson v. Makin, 596 U.S. 767 (2022). From those Cases and others, federal courts have developed the “general applicability doctrine.” That doctrine allows states to fund benefits for private religious schools, as long as the funding programs generally apply to both secular and religious institutions. The doctrine also allows states to regulate activities that take place in a church, as long as the regulations generally apply to both secular and religious institutions. Neither the Employment Division Case, nor the Carson Case considered the impact the “Establishment Clause” of the First Amendment on the general applicability doctrine.

Written language in a legal document, like the United States Constitution, has to be interpreted in the context of the rest of the document, and in the context of the history of both the document and the document’s text. Only by that process can the intentions and the purposes of the document’s creators be fairly determined and applied, particularly when all of the document’s creators are dead. The two Religion Clauses of the First Amendment, when read together as their creators obviously intended, and also when read in the context of the original Constitution’s “No Religious Test Clause”[3] display a clear purpose, among America’s founders, to maintain at least some degree of legal separation between America’s churches, and American government. Both the Employment Division Case and the Carson Case honor that purpose, as well as the semantic intent of the First Amendment’s text, so neither case should be overruled.

As for the precise question in the St. Mary Catholic Parish v. Roy Case coming up for argument on Election Day, that would seem to depend on the factual question of whether any secular, but private preschools in Colorado really want to discriminate against homosexual and transgender individuals. If some do, the Colorado anti-discrimination law was intended to apply generally to both secular and religious institutions, and should therefore be declared Constitutional. If none do, the Colorado anti-discrimination law may have been meant to apply specifically to religious schools that take a theological position with which the state disagrees. That would cross the line set by the Establishment Clause, which prohibits legislation “respecting an establishment of religion.”  The schools could still maintain their position, but they could not qualify for Colorado’s pre-school assistance program under the Constitution.

/s/ Dan D. Rhea

[1] See U.S. Const., Amendment XIV, Section 1 (1868).

[2] See Colo. Rev. Stat. § 26.5-4-205(2)(b).

[3] U.S. Const., Article VI.