Tension Between States’ Rights and Religious Rights

Introduction

Under the Roberts Court, the barrier between church and state in K-12 public education has significantly weakened. Over the past ten years, Supreme Court rulings have enabled private religious schools to receive public funding, even when there are legitimate Establishment Clause concerns at issue. At the same time, states have sought to guard against discriminatory practices by making eligibility for publicly supported education funding contingent on compliance with non-discrimination laws. Courts are now increasingly considering whether private religious schools that participate in such state-funded programs must also adhere to these non-discrimination requirements.^[1]

Generally, when private schools accept state funds, the government can require the schools to comply with certain mandates. For example, if a private school is a state funding recipient, a state might choose to require that the school not discriminate against students based on race, sex, or disability in admissions.^[2] This is not entirely surprising, as states generally control education and have much leeway in regulating PK-12 schools.^[3] As the Brown v. Board of Education decision underscored, a free public education “is perhaps the most important function of state and local governments.”^[4] Indeed, states have a primary role in educating children in the U.S.^[5]

Questions have arisen, however, about whether these state non-discrimination laws apply to private religious schools that receive state money.^[6] Some states assert that if a private religious school receives taxpayer money, it must adhere to its non-discrimination provisions. Several private religious schools, however, contend that some aspects of a state’s non-discrimination law may offend their sincerely held religious beliefs. This raises the question: can private religious schools be given unfettered access to taxpayer money without complying with a state’s non-discrimination laws? In this Article, we explore the distinct question about whether a state can be compelled to fund discrimination—a question that has not been specifically addressed by the U.S. Supreme Court when reviewing state-funded voucher programs.

First, we briefly discuss state and federal constitutional provisions and U.S. Supreme Court decisions that intersect with this issue. After setting the context, we examine more recent cases that squarely address whether states can require private religious schools to adhere to state non-discrimination laws that allegedly offend their religious beliefs. Of particular interest is a 2025 Tenth Circuit decision, St. Mary Catholic Parish in Littleton v. Roy, that upheld a state’s non-discrimination law even though it offended the religious beliefs of private religious schools that received public funds.^[7] In addition to this 2025 opinion, there are three federal district court cases on appeal that also address this topic.

Legal Context

In order to understand the novel legal issues at hand, it is important to provide some background information on how this matter intersects with state and federal constitutional provisions as well as previous Supreme Court decisions. The relevant legal framework is briefly highlighted.

A. State Constitutional Provisions

Over thirty-five state constitutions include no-aid provisions that generally forbid the channeling of public funds to religious entities, including religious schools.^[8] These state constitutional provisions are often called “Blaine Amendments”—the original “Blaine Amendments” were named after Representative James G. Blaine who in 1875 proposed a federal constitutional amendment that forbid public money to be used in religious entities.^[9] While the federal proposition failed, states introduced and enacted similar constitutional amendments prohibiting religious entities from accessing public funds. Modern legal interpretations of these no-aid provisions have been used to challenge school choice initiatives, and specifically voucher programs, that allow public funds to be used in private religious schools.^[10] As will be discussed, recent Supreme Court decisions have limited the application of these state-level restrictions. Beyond state constitutional provisions, some states have enacted laws that try to maintain separation of church and state when it comes to public funds.^[11]

B. Federal Constitutional Provisions

The Establishment Clause in the First Amendment of the federal Constitution prohibits the government from making a law “respecting an establishment of religion.”^[12] Within the context of U.S. public schools, the U.S. Supreme Court has generally prohibited direct government support for religion.^[13] Further, the Free Exercise Clause of the First Amendment limits the state’s ability to restrict religious exercise, providing that “Congress shall make no law . . . prohibiting the free exercise [of religion].”^[14] Since the 1960s, the U.S. Supreme Court has applied “strict scrutiny” review in all cases involving free exercise of religion.^[15] Under strict scrutiny review, the Court requires that a burden on religious exercise must be outweighed by a compelling state interest and “narrowly tailored” to accomplish the state’s goal.^[16] In 1990, the Court subsequently ruled in Employment Division v. Smith that strict scrutiny review does not apply when the state’s actions are “neutral” and “generally applicable.”^[17] If a law is neutral and generally applicable, it “need only be rationally related to a legitimate governmental interest to survive a constitutional challenge.”^[18] This is known as rational basis review. It is much easier for a policy or law to be upheld when a court is employing rational basis review than strict scrutiny.

After Smith, a state’s action infringing upon one’s free exercise of religion is permissible if it only has an “incidental” effect on religious practice.^[19] Smith underscored that the state must be able to enforce the law equally against everyone, no matter an individual’s beliefs.^[20] However, in Church of the Lukumi Babalu, Aye, Inc. v. City of Hialeah and Fulton v. City of Philadelphia, the Court clarified its Smith holding. In Lukumi, the Court ruled that governmental restrictions that displayed hostility toward religious groups were not neutral.^[21] Furthermore, in Fulton, the Court found that laws imposing a “system of individualized exceptions,” were not generally applicable.^[22] In such instances, strict scrutiny review also applied.^[23]

C. U.S. Supreme Court Decisions

In 1947, the Supreme Court wrote that “no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”^[24] In this decision, the Court upheld a state program that supported the transportation of students to all schools, including religious schools. However, it also emphasized that transportation services, like ordinary police and fire protection, were “so separate and so indisputably marked off from the religious function.”^[25] In other words, this transportation program did not directly support a religious mission. A year later, the Court ruled that allowing religious instructors from various denominations into public schools violated the Establishment Clause.^[26] Since 1948, the Court has shifted its stance on public aid to religious schools.

Specifically, there are three more recent U.S. Supreme Court decisions that illustrate this shift. In Trinity Lutheran v. Comer, the Court ruled in 2017 that a church-related preschool program should be eligible on the same basis as secular organizations to compete for a state grant that provided funds for a playground resurfacing project.^[27] Because the Missouri State Constitution prohibited the use of public money to aid religion, the religious preschool’s application was denied. The church sued the State alleging that the exclusion of churches from an otherwise neutral and secular aid program violated their free exercise rights.^[28] The Court found that a generally available government benefit cannot be denied solely on the basis of religion. This case was surprising to many because prior decisions by the Court rejected Free Exercise challenges raised by religious schools that were denied state aid.^[29] Specifically, Trinity Lutheran was the Court’s first decision finding free exercise rights for a sectarian institution to participate in a publicly funded program.

The Supreme Court rendered another decision in 2020 that further expanded the reach of the Free Exercise Clause. In Espinoza v. Montana Department of Revenue, the Court analyzed whether a state agency in Montana could prohibit religious schools from participating in a state tax credit scholarship program. Due to the Montana Constitution’s no aid provision, the state agency thought it should deny religious schools from participation. The Court, however, found that the application of the no-aid provision violated the Free Exercise Clause.^[30] The Court reasoned that once a state decides to subsidize private education, it cannot deny schools solely because they are religious.^[31]

Only two years later, the Supreme Court ruled in Carson v. Makin that a state could not exclude private religious schools from a tuition-assistance program.^[32] Maine’s statewide tuitioning program allowed school districts that did not operate a public school to pay a portion of tuition for students to attend an approved private school of their parent’s choice. This program was started because parts of Maine are sparsely populated and many of its smaller communities did not have the resources to operate public schools. As such, Maine permitted private schools to deliver a public education in place of public schools for some municipalities. However, the state required that these schools provide an education that was equivalent to the public school system, meaning that private religious schools were excluded from the program.^[33] The state asserted that this “non-sectarian” requirement addressed its Establishment Clause concerns and helped avoid the public funding of religious instruction. According to the Court, however, the state was prohibited from subsidizing some private schools but not others because of their religious character.^[34]

A few of the justices seemed to forecast what might lie ahead. For example, during the oral arguments of this case, Justice Breyer noted that one of the private religious schools involved in the case believes that the “man is the boss of the women” and raised concerns if public funds should be funneled to schools with anti-LGBTQ+ policies in place.^[35] In her dissent, Justice Sotomayor wrote, “[w]hile purporting to protect against discrimination of one kind, the Court requires Maine to fund what many of its citizens believe to be discrimination of [another] kind[].”^[36] Both Justices Breyer and Sotomayor were correctly concerned that allowing taxpayer money to be used in private religious schools could lead to a state’s funding of discrimination.

In sum, the U.S. Supreme Court’s three most recent opinions have expanded free exercise rights for private religious schools.^[37] In each case, the Court expanded rights under the Free Exercise Clause while simultaneously dismissing concerns that the Establishment Clause limited policymakers’ discretion. These recent decisions contradict previous precedent as religious beliefs seem to outweigh restrictions on the Establishment Clause.^[38] Finally, while these cases limited some use of state constitutional “Blaine Amendments,” their future is still being examined.^[39] It would not be entirely surprising if lawsuits are eventually filed to challenge specific state Blaine Amendments.^[40] Moreover, the Court has not squarely addressed the issues that Justices Breyer and Sotomayor raised.

State Non-discrimination Requirements and Recent Challenges

Since the Supreme Court issued its decision in Carson v. Makin, there have been three federal district court cases and one decision from the Tenth Circuit Court of Appeals that touch upon whether states must subsidize discrimination in K-12 schools and educational programs. In this section, we briefly explore this new line of post-Carson litigation. Although the plaintiffs have alleged different First Amendment claims (free speech, free exercise, and Establishment Clause), this Article focuses specifically on the free exercise arguments. We also exclude the discussion of any employment issues raised in the cases examined.

A. The Colorado Preschool Choice Program

In Colorado, two federal courts addressed whether private religious schools that accept taxpayer money are bound by the state’s non-discrimination requirements.^[41] This controversy began when Colorado created a Universal Preschool Program that allowed both public and private preschools within the state to participate.^[42] Colorado preschools were not required to participate in this state program.

The preschool program provided for a “mixed delivery system” to offer preschool services, specifically including religious-based preschools, through a combination of school- and community-based preschool providers funded by a combination of public and private money.^[43] To meet the goals of the program, the implementing Department in Colorado was tasked with prescribing uniform quality standards, such as teacher qualifications and classroom sizes. The Colorado legislature also required a non-discrimination requirement.^[44]

In order to participate, Colorado conditioned participation on compliance with an “equal opportunity” rule where children would be permitted to enroll regardless of certain characteristics, including race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability.^[45] The equal opportunity rule ensured that children and families would not face discrimination.^[46] In other words, preschools that chose to participate needed to abide by the state’s non-discrimination laws.

The Archdiocese of Denver did not want most of its preschools to participate in the state-funded program if they were required to follow the state’s non-discrimination provisions.^[47] The plaintiffs in the Tenth Circuit case, St. Mary Catholic Parish in Littleton v. Roy, claimed that the Archdiocese did not recognize same-sex relationship or transgender status, which would have created conflicts with their religious beliefs with regard to admitting LGBTQ+ students or admitting a child from a same-sex family.^[48]

In response, Colorado’s governor initially tried to compromise and allow only members of the congregation to attend these schools.^[49] The state later voluntarily repealed this regulation related to congregation preference because the district court found it to be unlawful.^[50]

Families enrolled in the choice system through an online portal that used an algorithm to match families with one of their five ranked choices of preschools.^[51] In response to preschool complaints, the department added a preference system enabling preschools to set different preferences in how the algorithm matched students. For example, preschools could prefer to be matched in a manner that aligned with school district boundaries.^[52] This list of preferences included a catchall, permitting individual preschools to request new matching preferences.^[53] But the school still had to comply with the non-discrimination provision.^[54]

Additionally, the choice program permitted the state to temporarily waive certain “quality standards” during the rollout of the complex mixed-delivery system.^[55] For example, preschools might be given extra time to train teachers.^[56] However, that provision did not permit the state to waive the non-discrimination requirement.^[57]

Two Catholic schools as well as two parent parishioners brought a lawsuit challenging the constitutionality of Colorado’s equal-opportunity requirement. A federal district court ruled in favor of the state, but the plaintiffs appealed.^[58] In 2025, the Tenth Circuit Court of Appeals affirmed the district court’s decision denying the preschool an injunction and upholding the state’s right to require non-discrimination provisions at publicly funded preschools.^[59] According to the court, the state “did not exclude faith-based preschools from participating.”^[60] The three-judge panel underscored that the non-discrimination policy “applies to all preschools regardless of whether they are religious or secular.”^[61] The court rejected the plaintiffs’ attempt to equate the non-discrimination requirement with religious-use restrictions on account that they limited religious exercise.^[62] Unlike the state policies reviewed in Trinity Lutheran, Espinoza, and Carson, Colorado’s non-discrimination requirement did not exclude religious institutions based on their status or religious use of funds.^[63] Furthermore, the program was different from Carson because the preschools that took part in this program could use state funds to educate students on matters of faith.^[64]

The circuit court also found that the non-discrimination policy was neutral and generally applicable. The requirement was facially neutral because it applied to all schools and did not mention religion “except to prohibit discrimination based on religious affiliation.”^[65] The court also rejected the plaintiffs’ assertion that the department’s recalibration of the congregation preference was evidence of hostility toward religion. If anything, the court reasoned, the initial congregation preference was designed to actually assist the religious preschools.^[66] As such, the department’s actions were far from the religious gerrymander that existed in the Lukumi case.^[67]

With regard to neutrality, the plaintiffs asserted that the catchall preference and temporary waiver provision were systems of individual exemptions.^[68] The court rejected both claims.^[69] The court acknowledged that the catchall preference resembled a system of individualized exemptions because it enabled preschools to request a unique preference, which the department could decide to approve or reject. Therefore, the catchall preference could be seen as “an individualized addition to a list of preferences.”^[70] However, the court countered that the preference system did not give preschool the authority to contravene the choice program’s non-discrimination provision. Because the preference system could not be used as an exception to the non-discrimination requirement, Fulton was inapplicable. The voluntary waiver system, giving preschools extra time to meet quality standards, could not be “reasonably understood to authorize even a temporary exception to the non-discrimination requirement.”^[71] While preschools might need some time to comply with certain quality standards (e.g., training staff), they did not need time to work toward complying with the non-discrimination requirement.^[72] They could simply choose to stop discriminating in admissions.^[73] Therefore, the department had no discretion to waive the requirement, even temporarily.^[74]

Because the choice program was generally applicable and neutral, the circuit court applied rational basis review. The non-discrimination requirement was rationally related to the legitimate purpose of “protecting equal access to preschool education for Colorado children.”^[75]

In an earlier Colorado case, Darren Patterson Christian Academy v. Roy, a preschool associated with Darren Patterson Christian Academy also sued Colorado over its non-discrimination law. ^[76] The preschool initially signed the state’s non-discrimination statement but was concerned about having to hire employees who were from the LGBTQ+ community and who did not share the same faith as the Academy.^[77]

This preschool was successful in obtaining a preliminary injunction that blocked Colorado from enforcing the non-discrimination law.^[78] In rejecting the state’s motion to dismiss, a federal district court reasoned that Colorado’s law would force the school to choose between adhering to its religious beliefs at the risk of being excluded from the choice program or complying with the department’s rules.^[79] By forcing the school to make this choice, the court reasoned that the program violated the Trinity Lutheran, Espinoza, and Carson trinity of free exercise cases.^[80] The court also found that the state’s rules were likely neither neutral nor generally applicable.^[81] The choice program failed the general applicability requirement because the department provided exemptions to other schools while denying an exemption to the plaintiff school.^[82] Consequently, strict scrutiny applied, and the law was likely unconstitutional because there was no sufficiently compelling reason for infringing upon the school’s free exercise rights.^[83]

In a subsequent proceeding, the federal district court again sided with the Christian school, finding the state’s requirement was neither “neutral” nor “generally applicable” because the state included a temporary waiver, which allowed an exception from the “quality standards” and also because it created a preference for faith-based schools to reserve space for their own members.^[84] The court granted the school’s motion for summary judgment on this issue and granted the school a permanent injunction against enforcing the quality standards provision against the school. The state of Colorado has appealed this decision to the Tenth Circuit.

B. Maine Human Rights Act (MHRA)

In 2021, while the Carson v. Makin decision was pending, Maine amended its Human Rights Act (“MHRA”). Prior to the 2021 changes, MHRA’s educational non-discrimination provisions did not include gender identity, religion, ancestry, or color.^[85] MHRA’s non-discrimination provisions currently prohibit discrimination based on religion, sexual orientation, gender identity, disability and ancestry, national origin, race, color or religion.^[86] Any school that participates in the tuition-assistance program and violates the non-discrimination act is subject to a $100,000 fine. Saint Dominic Academy and Bangor Christian Schools, the plaintiff in Carson v. Makin, each filed separate federal lawsuits challenging the MHRA.

In St. Dominic Academy v. Makin, the plaintiffs (the archdiocese, a Catholic high school, and parent parishioners) argued that the State’s MHRA non-discrimination law violated the schools’ free exercise rights because some of its practices put the school at risk of being ineligible to participate in the tuition program.^[87] In 2024, the federal district court denied the plaintiffs’ motion for a preliminary injunction.^[88] The court found that the MHRA was neutral because insufficient evidence was presented to show that the state was motivated by hostility toward religion.^[89] However, the court found that the law was not generally applicable because it did not apply extraterritorially (i.e., Maine paid for students to attend private schools out-of-state), and it did not apply to private postsecondary institutions in Maine.^[90]

Nevertheless, the court found that prohibitions withstood strict scrutiny review. The state had a compelling interest in eliminating discrimination with respect to publicly funded institutions.^[91] Unlike Fulton, the state did not provide a system of individual exceptions at the discretion of an official.^[92] The challenged provisions were also narrowly tailored because there was no evidence that the challenged policies prevented the school from conducting prayers, teaching from a Catholic perspective, or promoting Catholicism at the expense of other religions.^[93]

The second case in Maine, Crosspoint Church v. Makin, was also decided in 2024.^[94] Crosspoint operates Bangor Christian Schools, which openly discriminated by denying admission to students on the basis of their faith, sexual orientation, and gender identity. Crosspoint filed for a preliminary injunction, alleging that the changes to the MHRA violated the Free Exercise Clause.^[95] The school subscribes to religious beliefs that uphold marriage as a union between one man and one woman, and its code of conduct prohibits students from engaging in immoral conduct, including sexual activity outside of marriage, or identifying as a gender other than their biological sex. Also, school employees must be co-religionists and agree with the school’s statement of faith.^[96]

Because of Crosspoint’s discriminatory policies, it could not participate in Maine’s school tuitioning program. Thus, Crosspoint alleged that Maine’s non-discrimination provisions violated the schools’ right to free exercise. Maine argued that the MHRA is religion-neutral and generally applicable, and that the state law regulates conduct not speech.^[97] A federal district court denied the school’s motion for a preliminary injunction.

Regarding Crosspoint’s free exercise claims, the federal district court concluded that Maine’s amendments to the MHRA were done for legitimate interests, namely, preventing discrimination in education. Moreover, Maine’s decision to add further protections to the MHRA aligned with similar Maine laws on employment, housing, and education, which likewise prohibit sexual orientation/gender identity discrimination, but also generally exempt religious organizations that do not receive public funding. The court found that the MHRA provisions were reasonably related to the state’s interest in preventing discrimination and applied generally to all schools receiving public funding.^[98] Although Crosspoint did not prevail in its challenges to the MHRA, the district court did explain that this case presents new constitutional questions that the appellate court will likely eventually resolve.^[99] Both cases are being appealed to the First Circuit.^[100]

Discussion

While the current Supreme Court seems to have moved in another direction when it comes to free exercise jurisprudence, it is unclear whether a state’s interest in protecting all children from discrimination would outweigh religious rights. As Professor Tebbe wrote after Carson v. Makin: “With respect to public funding of religion, the separation of church and state has all but disappeared, without a bang or even a whimper.”^[101] The cases from Colorado and Maine might provide further guidance on whether or not religious rights have been truly elevated above any other rights.

Although the Maine and Colorado decisions are asking a different legal question than what was raised in the earlier decisions discussed, these recent cases are particularly significant because they are the first to analyze whether state law can prohibit discrimination in private religious schools after Trinity, Espinoza, and Carson. Indeed, after Trinity, Espinoza, and Carson, some observers contended that a private religious schools’ free exercise rights might override students’ civil rights.^[102] The Tenth Circuit’s decision and the two federal district court decisions from Maine suggest that this may not hold entirely true.

It is important to highlight that the Court has long observed that states have a compelling or important interest in protecting its citizens from invidious discrimination, even by private parties.^[103] Moreover, the Free Exercise Clause does not demand a state provide financial assistance that inflicts discriminatory harm on its fellow taxpayers.^[104] For example, in the past, private schools^[105] and private religious schools^[106] that discriminated based on race due to sincerely held religious beliefs lost their free exercise cases. To illustrate, both a private religious university and a private religious K-12 school barred Black students from enrolling due to the schools’ sincerely held religious beliefs.^[107] When the IRS threatened to suspend the schools’ tax-exempt status, the two private religious schools sued. The Supreme Court rejected the schools’ free exercise arguments and found that the government has a “fundamental, overriding interest in eradicating racial discrimination in education.”^[108] It should be noted that the preschools involved in the Tenth Circuit opinion discussed did not appreciate being compared to segregation academies. The Tenth Circuit disagreed with the preschools, finding the comparison to be a “purely legal one.”^[109]

Likewise, in a subsequent case involving a child custody matter, the Supreme Court observed that “the Constitution cannot control such prejudice . . . neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”^[110] To be sure, the constitutional guarantee of religious freedom is not an entitlement to “general immunity from secular laws.”^[111] As underscored in Employment Division v. Smith, anything to the contrary would “make the professed doctrines of religious belief superior to the law of the land, and in effect . . . permit every citizen to become a law unto himself.”^[112] In a country characterized by extensive religious diversity, the wide range of beliefs among the population makes it unavoidable that certain secular laws may conflict with or offend some individuals’ religious convictions concerning race, sexual orientation, or faith. Hopefully the Court will eventually find that a state has discretion to condition the receipt of public funds to ensure the money is used in a manner consistent with state policies. State power could be diminished if a private religious school that receives taxpayer money is allowed to engage in discriminatory practices that conflict with state law.

While residents in any state have the right to freely exercise their religion, there is also a strong governmental interest for states to provide education in a non-discriminatory way. In providing education, it includes oversight about how to subsidize schools that use public money for sectarian purposes. Of course, in doing so, a state may not apply non-discrimination conditions unevenly, allowing exceptions for secular but not religious reasons.^[113] Also, even if rational basis is not ultimately applied, the Court should find that the public’s interest in not funding discrimination is a compelling state interest. Finally, the state would be abandoning its most basic obligation to treat all its citizens equally if they were required to fund programs that treat some of its members “as social outcasts or as inferior in dignity and worth.”^[114]