The Supreme Court’s conservative majority could deliver another major victory to religious conservatives, and doing so may require dismantling a landmark ruling written by the late Justice Antonin Scalia, according to an analysis by CNN's Joan Biskupic.
In St. Mary Parish v. Roy, two Catholic preschools and the Archdiocese of Denver are asking the justices to let them participate in Colorado’s universal preschool program without signing the state’s nondiscrimination agreement, which covers sexual orientation and gender identity.
A federal appeals court sided with Colorado, relying on Employment Division v. Smith, a 1990 decision holding that states don’t need a “compelling” interest to justify laws that are neutral toward religion and apply to everyone. “The nondiscrimination requirement exists in harmony with the First Amendment,” the 10th U.S. Circuit Court of Appeals ruled.
Lawyers for the Catholic groups are now pressing the court to overturn Smith entirely.
The irony is hard to miss. Scalia, long revered as a conservative icon, wrote the ruling against two members of a Native American church who were fired for using peyote in a religious ceremony and then denied unemployment benefits. Justice Sandra Day O’Connor slipped a private note to Justice Harry Blackmun as Scalia announced the decision: “Harry, the Court took the wrong turn today in the free exercise case in my view. It pains me.”
Three decades later, the picture looks very different. Recent challenges have largely been brought by Catholics and other Christians, and they’ve almost always won, according to CNN. Under Chief Justice John Roberts, the court has repeatedly ruled for religious conservatives while sidestepping Smith, often by finding a disputed law wasn’t truly neutral.
Three justices want to go further. Justices Samuel Alito, Clarence Thomas and Neil Gorsuch, Scalia’s successor, have openly called for overturning the ruling.
“No fewer than ten Justices – including six sitting Justices – have questioned its fidelity to the Constitution,” Gorsuch wrote in 2021. “So what are we waiting for?”
When Roberts declined to revisit Smith in a 2021 case involving a Catholic agency that refused to certify same-sex foster parents, Alito mocked the majority’s reasoning, writing that the decision “might as well be written on the dissolving paper sold in magic shops.”
The Trump administration is backing the Catholic preschools but offering the justices a narrower path, arguing Smith “has no force” when the government restricts public benefits based on religious exercise.
Colorado’s lawyers reject the claim that Smith is unworkable, noting that a trial judge found no evidence of religious hostility behind the rule, which protects preschoolers of same-sex couples.
Even a leading critic of Smith doubts the justices need to reach that far.
“St. Mary’s has a very good claim, even under Smith as the court has recently interpreted it,” said Stanford law professor Michael McConnell.
Report typos and corrections to corrections@rawstory.com.
For customer support contact support@rawstory.com.
