Religious Liberty Déjà Vu

In 2017, the Supreme Court ruled that to deny a church “an otherwise available public benefit on account of its religious status” is to violate the Free Exercise Clause of the Constitution. In that case, Trinity Lutheran Church of Columbia v. Comer, a Missouri church that operated a licensed preschool and daycare facility, applied for state “funds for qualifying organizations to purchase recycled tires to resurface playgrounds.”  

Trinity Lutheran met all the qualifications of the program, but the state informed them that a grant would violate a state constitutional provision that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” Trinity Lutheran sued, claiming that because of the Free Exercise clause in the First Amendment, a government benefit cannot be withheld solely because of religion. In his majority decision, Chief Justice Roberts agreed, writing, “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”  

The Trinity Lutheran case was only six years ago but, in a case of “those who forget history are doomed to repeat it,” Colorado is the latest state to “forget” something about which the Court has been very clear. 

This is the inaugural year of Colorado’s Universal Preschool Program, which funds 15 hours of preschool per week for every child in the state. To be a part of the program, the state is requiring that preschools sign a “service agreement” that includes a commitment to “not discriminate” on the basis of sexual orientation or so-called “gender identity.” 

In August, the Denver Catholic Archdiocese, which operates 36 preschools and serves 1,500 kids a year, filed a lawsuit, noting that this “service agreement” would force them to hire teachers and administrators who do not hold to their faith commitments. Not only is this a case of “Trinity Lutheran all over again,” but it is another chapter in the never-ending story of public officials pressuring Christians to keep their faith out of public life.  

Recently in Massachusetts, state officials denied an adoption license to a Catholic couple, claiming their faith made them “unsupportive” of transgender ideology. The state of Oregon similarly denied an adoption license to a young, widowed mother because she would not commit to taking a hypothetically gender-confused child to a gender clinic.   

Years ago in a Breakpoint commentary, Chuck Colson described the jury selection process in the trial of Jack Kevorkian, the doctor accused of helping at least 27 of his patients kill themselves. Kevorkian’s lawyer attempted to bar anyone who said their Christian faith forbids suicide from serving on the jury, claiming that belief made them unfairly biased. 

"Religion has been increasingly relegated to the private sphere. Christians are welcome to participate in public life only if they leave their faith at home … [but] [t]he logic of Kevorkian’s defense attorney could be applied to any criminal trial. If potential jurors can be excluded for believing that assisted suicide is immoral, what will be the next step? Will the attorneys of accused murderers be permitted to exclude jurors whose religion teaches that life is sacred?" 

More than 25 years later, that dismal hypothetical seems less hypothetical. As the Colorado, Massachusetts, and Oregon stories reveal, some public officials are so hostile to the Christian faith, they would rather allow children in foster care to sleep on office floors in government buildings and remain in juvenile detention facilities than go to a home with religious parents. 

Of course, there must aways be moral restrictions around who can and cannot adopt children and operate a preschool. Restrictions are necessary to protect children. However, some states are now operating from a moral framework that is exactly backward. The biblical woes against those who call right wrong and wrong right apply as much to government programs as they do to individuals.  

It is a grave mistake to use irrational and false moral claims as the basis for these moral restrictions. In this upside-down world, children must be protected from religion rather than ideologies that threaten their minds, hearts, bodies, and most importantly relationships. Claiming to protect children, they are instead put in danger, subject to irreversible physical, psychological, and emotional damage. 

Given how clear the Supreme Court has been about states discriminating against religious institutions, I suspect the state of Colorado will be forced to change this policy. Given how willing the state of Colorado is to defy clear Court teachings and target people of faith, I suspect they will resist for as long as possible. In the meantime, children will suffer because of the state’s bigotry. If people of faith are told they “need not apply” for adoption licenses, preschool programs, serving on juries, feeding the homeless, advocating for the preborn, or caring for the sick and dying, who do they imagine will take their place? 

This Breakpoint was co-authored by Maria Baer. 

For more resources to live like a Christian in this cultural moment, visit Colsoncenter.org