On Tuesday, the Supreme Court hears arguments in a case that pits the Catholic Church against taxpayer funded school programs for all 4-year-olds in Colorado.At issue is whether religious schools may refuse to admit the children of gay and trans parents in violation of a state law that bars discrimination.The first line of the Bill of Rights says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." As early as the founding of this country, Thomas Jefferson described the clause as creating a "wall of separation between church and state."The Supreme Court formally embraced that idea in the 1940s, making it the law of the land — until roughly 10 years ago.
That's when the court's new conservative majority made an increasingly dramatic doctrinal U-turn, focusing not on the separation of church and state, but on that second clause in the First Amendment: protecting the free exercise of religion."It's literally the opposite of what the law was not that long ago.It is just a complete shift," says Michigan State University law professor Frank Ravitch, who has written extensively about the Constitution's religion clauses.To cite just one example, the Supreme Court, by an 8-to-1 vote, ruled in 1983 that that Bob Jones University should lose its tax exempt status because it prohibited interracial dating and interracial marriage on religious grounds, and that constitutes racial discrimination that the government money may not support.That said, it's unclear if the court will reach a similar conclusion now.
Why is that? Because race has a "unique" place in U.S.history, contends professor Douglas Laycock, emeritus professor of law at the University of Texas at Austin and the University of Virginia.
"There's nothing like 250 years of slavery, civil war, 750,000 dead, three constitutional amendments.Nothing like that for any other group," he says.As for the Colorado case, Laycock acknowledges that the Denver archdioc...