The Constitutional Tension: Government Neutrality vs Free Exercise Protection

     In 2020, Colorado voters approved a proposed program that would provide funding for voluntary, universal preschool in the State. The program was later created in 2022, when Colorado's Department of Early Childhood established the “universal” preschool program that allows prekindergartners to have 15 hours of school time per week. The only requirement was compliance with an equal opportunity agreement that prohibited discrimination against students or their families based on race, religious affiliation, sexual orientation, gender identity, income, or disability. This would guarantee that all children and their families would be free from facing any stigma or discrimination. The program was advertised as universal and was offered to all public, private, and religious institutions on the condition that they agreed to the equal opportunity requirement. Two catholic institutions were excluded from the program due to their refusal of the requirement and brought the case, St. Mary Catholic v. Roy, to court, alleging discrimination in violation of the free exercise and the free speech clauses of the First Amendment.

       Does the equal opportunity requirement, by requiring religious schools to accept policies that conflict with their doctrine, infringe upon the church’s religious exercise? Is the equal opportunity requirement a neutral policy in its effort to provide universal preschool?

       If we refer to previous cases, we can see that decisions vary on what neutrality is when it comes to the church’s rights to religious establishment. In a case like Carson v. Makin, Judges ruled in favor of the families. The government’s requirement was ruled against because it barred families from using funding for any religious institution. The difference between these two cases lies in the restriction it places; in St. Mary Catholic v. Roy, the restriction placed was that funding would not be given without a formal agreement to the equal opportunity requirement. It still allows institutions of both secular and religious backgrounds to apply and get the funding, thus giving a neutral opportunity to all parties. In Makin, the restriction was that no religious institution could be funded at all, and this was an exclusion of religion as a whole. Ultimately, violating the family’s right to free exercise under the First Amendment.

       Similarly, in Trinity Lutheran Church of Columbia, Inc. v. Comer, Justice Thomas found that the free exercise clause of the First Amendment was clearly created to prohibit laws that discriminate against religion. If the courts found that the state's requirement was an infringement on the church's free exercise clause, then the case would be handled differently. In Comer, the issue held was the states’ singling out religion itself and was ruled unconstitutional. However, in Roy, the law is seen as neutral because it doesn’t single out a specific religious faith or institution. Instead, it is willing to fund all preschools that sign up as long as they agree to the equal opportunity requirement, which many religious and secular schools have done.

        Furthermore, in the Espinoza v. Montana Department of Revenue case, Judge Ginsburg states that the precedent set by the court established that neutral government action is not unconstitutional solely because it doesn’t benefit religious exercise. This ultimately implies that Judge Ginsburg is conveying that the government does not owe or have to give special benefits, such as allowing exemption from equal opportunity policies, to religion, and as long as a law remains neutral and treats all religions the same, then it is constitutional. The case also found that the government cannot deny public benefits solely because an institution is religious, but is that really what is occurring in this case?

        I believe that the ruling should be in favor of the state, the requirements provided by the state, and the program itself are neutral and do not favor or pressure any religion. The state's actions in this case cannot be seen as targeting religion due to the fact that the separation of church and state in this case is already breached, as they allow all preschools of varying religions to receive funding. The state is not banning religious participation but conditioning funding on compliance with a neutral equal-opportunity policy.

        The focus of the issue is neutrality and the exclusion of one religious group due to an unwillingness to sign the equal opportunity requirement. In the case that it is not a law that the church must agree to the requirement, they can choose not to, but they would have to forfeit receiving the funding. The program presented by Colorado’s DOEC should and does fund all schools, as the program was presented to the community as a universal program. While the exclusion of some churches is upsetting, it has been promulgated that the requirement is necessary to receive funding.