This week, Notre Dame Law School’s Lindsay and Matt Moroun Religious Liberty Clinic filed an amicus brief on behalf of a coalition of religious freedom and educational choice organizations in St. Mary Catholic Parish v. Roy, a case challenging Colorado’s attachment of religiously onerous conditions to its universal preschool program. The Clinic’s brief urges the Supreme Court to take up the case and put an end to religious discrimination in public-benefit programs.
Colorado conditions participation in its universal preschool program in ways that force out many faith-based schools based on their religious exercise. Although the program does not explicitly exclude religious schools, it nonetheless denies certain schools access to otherwise available funding based on their religious exercise.
The Clinic’s brief draws attention to a growing tactic through which states have adopted laws like Colorado’s in an effort to “outmaneuver” and undermine Supreme Court cases against religious discrimination. Three times in the last eight years, the Supreme Court has struck down efforts to exclude religious institutions from otherwise available funding programs. Each time, the brief argues, opponents of the Court’s decisions have sought to riddle them with holes, requiring the Court to intervene time and again.
The brief contends that Colorado’s program represents the latest–and an increasingly common–line of attack against the Supreme Court’s decisions. The brief highlights laws across the country that have imposed gerrymandered conditions that essentially burden only certain religious schools, purposely driving them out of public-aid programs.
“States may have valid interests in regulating schools that take part in public programs,” said Professor John Meiser, faculty director of the Religious Liberty Clinic. “But they cannot simply assert those interests in an effort to hide the very same hostility to religious schools that the Supreme Court has repeatedly struck down.”
The Clinic’s brief urges the Court to step in to ensure that the First Amendment’s protection against religious discrimination may not be evaded simply by clever legislative drafting.
The Clinic filed the brief on behalf of the Notre Dame Law School Education Law Project, the Islam and Religious Freedom Action Team (a part of the Religious Freedom Institute), the Jewish Coalition for Religious Liberty, and the Manhattan Institute for Policy Research, organizations that work to advance religious freedom and other constitutionally protected liberties, promote educational opportunity, and protect the rights of religious educators and the families they serve.
"The Supreme Court repeatedly has said that states may not exclude religious schools from parental choice programs.” said Nicole Stelle Garnett, John P. Murphy Foundation Professor of Law and faculty director of the Notre Dame Education Law Project. “The Court should agree to hear this case to make clear that states may not circumvent that rule just by discriminating indirectly instead of explicitly. That is important to uphold the First Amendment and also to safeguard the educational freedom that these programs promote."
“It is un-American for the government to block religious institutions from benefits that it grants to others, and even worse to sidestep the Constitution through the supposedly neutral device of nondiscrimination laws,” said Ismail Royer, Director of the Islam and Religious Freedom Action Team. “The Supreme Court means what it says: state discrimination on the basis of religion is unlawful, and I'm confident it will uphold that principle again in this case."
Notre Dame Law School students Noah Borgeson, Jack McEnery, and Steven Tu contributed to the brief alongside Meiser, Meredith Kessler, managing attorney for the Clinic, and Domenic Canonico, legal fellow for the Clinic.
“Being part of the St. Mary’s team was one of the most meaningful experiences of my legal education,” said Borgeson. “Through the Clinic, I gained hands-on appellate experience on significant constitutional issues, as well as the opportunity to work alongside exceptional faculty and students.”
About the Notre Dame Law School Religious Liberty Clinic
The Lindsay and Matt Moroun Religious Liberty Clinic is a teaching law practice that educates, forms, and prepares Notre Dame law students to become the rising generation of religious liberty leaders by training students in the practice of the law as they defend religious freedom for all people.
Under the guidance of Law School faculty and staff, students work on a broad variety of legal matters to promote religious freedom on behalf of individuals and organizations of all beliefs—both domestically and abroad. The Clinic represents clients from all faith traditions to promote not only the freedom for people to hold religious beliefs but also their fundamental right to express those beliefs and to live according to them. Learn more about the work of the Clinic here.