In 2020, voters approved Proposition EE by a two-to-one margin to tax nicotine products to subsidize schools, including otherwise “private” preschools. Predictably, here we are, four years later, still fighting over how to distribute those funds.
Of particular importance is whether government can or should force people to subsidize religious preschools that, among other things, wish to discriminate on the basis of religious beliefs, sexual orientation, and gender identity.
Forget the arcane legal wrangling for a moment and just think about people’s basic rights. Do you have a right to decline to help finance some religious organization that propagates beliefs that you may not hold and may find repugnant? For example, if you are a Protestant, should government force you to finance a Catholic, Buddhist, or Islamic school?
If you take freedom of conscience and economic liberties at all seriously, it’s pretty hard to conclude anything other than that you have the right to decline to help finance views with which you disagree. Hence, government violates people’s rights by forcing them to subsidize religious institutions.
But hold on a minute. What if, say, you are a Mormon, and you send your child to a Mormon preschool? Should you be taxed to subsidize other people’s children to go to nonreligious preschools, when the preschool that you favor is excluded from the subsidy program? That doesn’t seem right either.
The solution that I tend to favor is to just stop forcing people to subsidize education. But that position is wildly unpopular. So we are left, one way or another, forcing some people to subsidize schools that teach beliefs they oppose. (See also my column from last summer.) Which brings us to a new legal decision.
Judge Kane’s Catholic preschool decision
On June 4, U.S. district court judge John Kane filed his opinion on the matter of Catholic preschools and anti-discrimination laws. Here I’ll quickly walk you through parts of his 101-page decision.
Kane reviews, “In accordance with the implementing statute, the Department must require participating ‘preschool provider[s to] provide eligible children an equal opportunity to enroll and receive services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability, as such characteristics and circumstances apply to the child or the child’s family.'”
Offhand that seems pretty fair, right? If you get public money, you have to serve all comers. So what’s the problem? St. Mary Catholic Parish in Littleton and St. Bernadette Catholic Parish in Lakewood, which both run preschools, contend, summarizes Kane, “that, by conditioning participation in the UPK Program on compliance with this ‘equal-opportunity requirement,’ namely the religious-affiliation, sexual-orientation, and gender-identity aspects of the requirement, the Department has excluded Plaintiffs from receiving a generally available public benefit.”
In other words, these Catholic schools want to get the government subsidies and discriminate on the basis of religious beliefs, sexual orientation, and gender identity. Basically, the Catholic preschools want participants to be Catholic and not be gay or transgender.
At this point Kane summarizes his position: “While it is settled at this point that states may not generally decline to fund religious schools as part of an educational benefits program, the weight of the relevant precedent supports that states administering such programs are not obligated to subsidize discrimination using taxpayer dollars, even when that discrimination is based on religious beliefs.”
Simple, right? Religious schools can get the tax money only if they don’t discriminate in the relevant ways. But not so fast!
Kane continues, “The key question in this case is whether the Department [of Early Education], in administering the [Universal Preschool] Program, has nevertheless created exceptions to the equal-opportunity requirement that warrant granting Plaintiff Preschools similar exemptions.”
The answer to that question, Kane found, is that the Department did create such exceptions. Specifically: “The Department has allowed faith-based providers to deny children and families equal opportunity based on their religious affiliation, or lack thereof, and has cited no compelling interest for permitting that discrimination while denying Plaintiffs’ request for a related exemption. On that narrow basis, I conclude Defendants have violated Plaintiffs’ free-exercise rights and that judgment in favor of Plaintiffs is warranted.”
In other words, because the idiots in the Department of Early Education violated relevant policy for some, they now must violate that policy for all. Sheesh.
Kane writes, “The Department created the congregation preference [that] permits faith-based providers to reserve for members of their church community all or a portion of the seats for which they are licensed.”
At first glance this seems like a fairly narrow exception. For example, Jenny Brundin writes, “The ruling . . . does not allow preschool providers to discriminate on the basis of other protected classes such as sexual orientation and gender identity.”
But, by my reading, there seems to be an obvious work-around: Catholic preschools can just tell gay and transgender people, “Sorry, you’re not part of our congregation.” So it seems to me that the Catholic preschools indirectly won the case.
Tax-funded education inherently political
People on the left tend to say that tax funds should not be used for religious instruction. I agree! Conservatives tend to say that religious schools should have the same opportunities to benefit from tax subsidies that secular schools have. Again I agree!
In the end, the only way to resolve this paradox is to stop forcing people to subsidize schools. I’ll hold my breath while the rest of you catch up with this logic.
If, rather than subsidize preschools, government had instead subsidized financially struggling families, those families could have used the funds however they want, whether on preschool, better food, better housing, more parental time at home, or whatever. Then we wouldn’t still be arguing about which preschools should receive the funds and under what conditions.
But we couldn’t possibly implement policy to minimize rather than maximize public strife.
Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.
