In the 1980s, a city in Florida enacted a law to prohibit animal sacrifices within city limits. This came after adherents of the Santeria religion, which includes animal sacrifice among its beliefs, announced plans to build a church in the city. The church challenged the law, but its challenge faced a hurdle. While the case was pending, the U.S. Supreme Court had decided a case in which it held that a law that was neutral toward religious belief was constitutional even if it incidentally imposed a burden on religious practice.

In 1993, the Court decided the challenge to the anti-sacrifice ordinance. The city argued that its ordinance was neutral. Anyone in town sacrificing an animal, other than some commercial slaughtering practices, was prohibited. Religious sacrifice was not singled out in the law. The Court saw past this excuse, though, and invalidated the ordinance as applied to the church because it found “the texts of the ordinances were gerrymandered with care to proscribe religious killings of animals but to exclude almost all secular killings.”

Last week, the Court held oral arguments in a challenge to a Colorado administrative regulation that was also framed as neutral toward religion. Colorado had adopted a program to make preschool universally available, including by providing funding to families to use with private providers. The law contains a significant exception. Providers cannot participate if they discriminate based on categories like sexual orientation and gender identity. This means that a program, like a Catholic preschool, that admits “only families who support Catholic beliefs, including on sex and gender” will be excluded from the program.

This exclusion is not entirely consistent, though. Petitioners argue that the antidiscrimination provision does not apply to preschools that “admit only ‘children of color,’ ‘gender-nonconforming children,’ ‘the LGBTQ community,’ low-income families, and children with disabilities.”

The U.S. Supreme Court has been clear that states cannot exclude people of faith or religious organizations from public benefits, including scholarship programs, just because they are religious.

The Colorado officials are arguing that their regulations do not exclude religious schools, per se, only those that “discriminate.” Like the Florida law described above, though, the Colorado regulations seem to be gerrymandered to exclude programs with standards based on religious moral teachings while allowing other programs to use similar distinctions for reasons the state approves of. This conclusion is supported by the fact that in recent years, Colorado has been “on the losing side” of three cases in which people of faith have been targeted for their beliefs.

The questioning in the oral argument suggests the majority of justices are concerned that Colorado was targeting religious families and schools for differential treatment.

This case provides the Court the chance to clarify that governments should not be trying to find workarounds to constitutional guarantees. What a state cannot do directly, like exclude groups or individuals from public benefits because of their belief, it cannot do by trying to make the exclusion seem neutral toward religion. The result is the same in either case and should be treated that way. What a state can’t do directly, it cannot do through targeted regulations or similar gerrymandering.