On Tuesday, the United States Supreme Court heard oral arguments in St. Mary Catholic Parish v. Roy. That case involves Colorado's universal preschool program's "equal opportunity mandate." To participate in the program, preschools must sign the mandate, which states that children will have an equal opportunity to enroll regardless of, among other things, sexual orientation.

Catholic preschools sued Colorado, saying that they must be granted an exemption to the mandate because their enrollment decisions are based on their families accepting the Catholic church's teaching about gender and sexual orientation. Not granting an exemption, the school argues, would be unlawful religious discrimination.

The case and arguments were fascinating, and I wrote more of an analysis of the arguments at the JURISTnews, but I wanted to highlight one part of the argument here.

Justice Barrett asked the State of Colorado why it has the nondiscrimination mandate, wondering whether secular schools are discriminating based on sexual orientation or other protected classes. She was getting at—and expressly mentions—an op-ed published in the New York Times that details how states can circumvent the Supreme Court's holding in Carson v. Makin (a case that held that states could not expressly refuse to offer funds to private religious schools when it offered the funds to private secular schools) by conditioning public funds on an agreement not to discriminate. The op-ed's reasoning was that only religious schools would discriminate, and therefore states could refuse to send funds to religious schools without violating Carson.

Justice Barrett had a hard time believing that secular schools were rampantly discriminating, the import of which would mean that Colorado created the policy to target religious schools. Such targeting would trigger strict scrutiny. Justice Kagan did not think this was the case, as there was evidence in the record that religious schools—even Catholic religious schools—were participating in the program. As such, to her, it seemed as if Colorado was simply trying to combat discrimination.

While Justice Alito does not think overturning Smith is on the table in this case, he nonetheless expressed his disappointment with its outcomes:

Justice Alito: One of the things it would allow is our imposition of a rule that says nobody could stand where you stand now with his or her head covered. So Orthodox Jewish men and many Muslim women would not be allowed to argue here. It would allow a rule that says that every slaughterhouse must render the animal unconscious before being killed, which would outlaw kosher and halal slaughterhouses, which is done in some European countries. It would mean that a governmental entity could prohibit circumcision, which is also done in some European countries.