Nelson Tebbe

Shifting Conceptions of Neutrality and Equality in St. Mary v. Roy

What do neutrality and equality require? These terms have different meanings that can be combined in various ways. The result can be a slippage from neutrality or equality into their opposites. An example is St. Mary Catholic Parish v. Roy, which will be argued in the Supreme Court on Tuesday. There, the Becket Fund is mixing different conceptions of neutrality, taken from distinct lines of cases, to generate preferential protection for religion.

In St. Mary, Becket is challenging Colorado’s universal preschool program. Colorado now offers free education to all four-year-olds using a mixed delivery system that includes public and private schools. Participating preschools must meet certain quality standards, and they must adhere to equal opportunity provisions that prohibit discrimination in admission on protected grounds, including “race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability.” An algorithm matches students with schools based on the student’s preferences and the school’s criteria, which can include district geography, sibling status, continuity of care, etc. 

Becket sued on behalf of Catholic schools, arguing that the Free Exercise Clause required an exemption from the equal opportunity requirement. These schools require parents to agree to follow the teachings of the Catholic Church, including its opposition to “same-sex relationships or transgender status.” The schools lost in the Tenth Circuit and their petition was granted by the Supreme Court. 

Becket makes two free exercise arguments. First, it claims that Colorado’s policy is nonneutral, and second, it contends that the policy is not generally applicable. That strategy tracks the governing rule, under which religious actors are not entitled to exemptions from government laws that are neutral and generally applicable. 

It turns out that both arguments rely on shifting conceptions of neutrality and equality—and in particular ways. First, with regard to neutrality, St. Mary is arguing that Colorado has effectively excluded Catholic schools from participating in the program. It is relying on a 2022 decision, Carson v. Makin. There, the Court invalidated a Maine program that basically used school vouchers as one mechanism for providing free primary and secondary schooling throughout the state. Because Maine limited its program to secular schools, the Court held that it had explicitly discriminated on the basis of religion in violation of free exercise. 

Here, Becket is arguing that Colorado’s equal opportunity requirement violates the rule of Carson because it effectively excludes Catholic schools. Notice the important shift. While Carson invalidated an explicit exclusion on the basis of religion, Becket is asking the Court to use the same case to invalidate an exclusionary effect. In equal protection terms, it is using a precedent about disparate treatment to argue against an instance of disparate impact. 

Yet this shift is not the only crafty feature of Becket’s argument; it is also combining different meanings of neutrality in a manner that systematically preferences religion. A generation ago, Douglas Laycock specified three meanings of religious neutrality. Formal neutrality prohibits the government from discriminating explicitly or purposively, while substantive neutrality prohibits discrimination of effect. In Laycock’s terms, Becket is using a case about formal neutrality to argue for substantive neutrality. That in itself is interesting. But Laycock added a third type, which he called disaggregated neutrality. Courts sometimes apply substantive neutrality only to government benefits, while applying only formal neutrality to government burdens. In other words, courts “shift back and forth among different versions of neutrality without explanation.” 

What is happening in these cases is disaggregation but in the opposite direction, as Rich Schragger, Micah Schwartzman, and I pointed out in a recent article. The Roberts Court is combining a rule of formal neutrality with respect to government benefits with a rule of substantive neutrality when it comes to government burdens. While both of these conceptions are defensible on their own terms, they combine here to form a legal structure of preference toward religion. 

Becket is moving between these two forms of neutrality within the parameters of a single case. When the question is whether religious schools must be funded by Colorado alongside secular schools, the applicable rule is the formal neutrality rule of Carson—they cannot be explicitly excluded. But when the question is whether Catholic schools must be specially exempted from the same program’s regulatory burdens, Carson comes to mean something else—neutrality of effect, or substantive neutrality. Such a combination of formal neutrality for benefits and effective neutrality for burdens is not neutrality at all, but religious preference. 

Second, with regard to general applicability, Becket is subtly slipping between divergent understandings of equality. For general applicability, the governing rule was established in Tandon v. Newsom and restated in Fulton v. Philadelphia: government presumptively cannot impose a regulation on religious activity where it exempts comparable secular activity (where religious and secular activities are comparable if they implicate the government’s interests in a similar way). Here, Colorado allows certain schools to select disabled students where necessary to comply with the federal IDEA law, and it allows other schools to select low-income students in accordance with the federal Head Start program, and it does so even though it prohibits discrimination on the basis of disability and income. Becket argues that these two are secular exemptions that trigger strict scrutiny under Tandon: Colorado presumptively cannot exempt secular schools from its discrimination rules while refusing to exempt religious schools. 

Colorado responds that it has allowed no exemptions from its equal opportunity rule. Policies that permit certain schools to prefer disabled students, and other schools to prefer low-income students, do not harm equal opportunity—they promote it. No school may exclude disabled students or low-income students. Therefore, Colorado says it has not exempted any secular entity from its rules, which apply evenhandedly. 

Notice that Tandon protects a species of equality. As I have explained elsewhere, this rule is similar to disparate impact, though perhaps even more powerful. It provides equality protection even absent any explicit or purposive discrimination on the basis of religion. Becket seeks to harness this powerful equality rule on behalf of Catholic schools. 

But in the service of this disparate impact claim, Becket operates with a very different conception of equality with respect to disability and income. There, the rule it promotes is anticlassificatory—it maintains that any use of disability or income classifications counts as discriminatory, such that Colorado must have created exemptions from its equal opportunity policy in order to allow those selection criteria. In other words, Becket’s argument that Colorado has exempted secular schools depends on a sharply distinct conception of what equality requires. 

So here too, in this second, general applicability part of the argument, Becket is moving between different conceptions of equality without acknowledgment. While perhaps they are not incompatible—that is debatable—these disparate impact and anticlassification understandings are combined opportunistically to benefit Catholic schools, to afford them special protection not extended to secular schools that may want similar accommodations for nonreligious reasons.

With respect to both halves of the argument, neutrality and general applicability, it’s obvious but important to state that slippages in Becket’s conceptions have another kind of equality effect, namely on the students who are excluded from educational opportunities because their parents, or they themselves, are LGBT. 

A response on behalf of the Catholic schools could be that Colorado likewise must be consistent in its uses of equality. If the state wants to operate with an equal-opportunity conception of equality for disability and income, then it should use the same conception for religious children and families, who are effectively excluded from its program, on this view. But Colorado can argue that it is being consistently inclusive. It allows schools to differentiate on the basis of disability and income in order to facilitate educational inclusion. It extends its universal preschool funding program to religious schools in order to include religious children and families. And it conditions government funding only where schools would systematically exclude transgender students and same-sex parents, not in a limited way, in the service of inclusion, but across the board. At least arguably, that policy pursues a principled version of equality.