Why Not Seek the Win/Win?

“Why not seek the win/win?” Justice Brett Kavanaugh posed that question to Colorado’s attorney during last week’s oral argument in St. Mary Catholic Parish v. Roy, a case involving Catholic preschools and the state’s nondiscrimination requirements. His question raises a broader issue: Why is compromise so difficult in conflicts between religious freedom and LGBTQ rights?

Some background: Colorado operates a universal preschool program that provides public funding for children attending participating schools, including religious schools. But participating schools must agree not to discriminate on several grounds, including sexual orientation and gender identity. Catholic preschools argue that these requirements interfere with their religious mission, which includes teaching Catholic doctrine about marriage and requiring families to support that teaching. Colorado maintains that religious schools may participate, but must comply with the same nondiscrimination requirements as other schools.

During oral argument, Kavanaugh noted that approximately 2,000 preschools participate in Colorado’s program, while only 34 Catholic preschools are involved in the dispute. The record does not identify any family headed by a same-sex couple that has sought admission for a child to one of these schools and been rejected. Why couldn’t Colorado accommodate these schools while ensuring that other families had ample preschool options?

Colorado’s attorney responded that equal access to publicly funded education requires more than the availability of alternative schools. The Catholic schools have a principled position as well. Why should they have to compromise their religious identity to participate in a generally available public program? They aren’t asking Colorado to endorse Catholic doctrine, only to permit them to maintain their religious mission.

So why is compromise so elusive? St Mary illustrates a dynamic I wrote about in an article several years ago on Masterpiece Cakeshop, another Colorado religious freedom controversy. I argued that conflicts over religious freedom and LGBTQ rights reflect profound cultural divisions in American society. These controversies implicate competing understandings of identity, dignity, and equality.

For traditional religious believers, marriage and sexuality implicate fundamental religious convictions. Requiring religious schools to disregard those convictions in their admissions policies seems like an intrusion on religious autonomy. For supporters of LGBTQ rights, allowing publicly funded schools to exclude children because of their parents’ relationships seems like a denial of equal dignity and citizenship. Each side regards the other’s position as demanding a concession on something fundamental. Besides, each side may think it has compromised enough. Colorado doesn’t prohibit religious instruction in funded schools; the schools don’t ask Colorado to endorse their position on same-sex marriage.

This isn’t the first time the Court has confronted such a problem. About a decade ago in Zubik v. Burwell, Justice Elena Kagan explored possible accommodations in a contraception mandate controversy, and the Court subsequently sought additional briefing on a compromise.

Kavanaugh’s question makes practical sense. The difficulty is that the parties don’t understand the controversy primarily in practical terms. Each sees fundamental principles at stake. The Court will resolve the legal dispute in St. Mary. But it cannot resolve the deeper social divisions that make compromises in these cases so difficult.

I discuss these questions in a new episode of Legal Spirits, available here.

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