As Colleen Hroncich and Solomon Chen have observed nearby, the Supreme Court yesterday ruled that the state of Maine violated the Constitution when it excluded schools that engage in religious instruction from an otherwise generally available program of tuition assistance payments to parents. That is the outcome the Cato Institute urged in our Carson v. Makin amicus brief last fall, written by Ilya Shapiro and Trevor Burrus. For more on the ruling and on the distinctive features of the Maine program, which assists parents who live in remote areas without a public secondary school, see also Neal McCluskey’s new Cato Podcast with Caleb Brown and Ilya Somin’s opinion piece for NBC.

It’s been widely observed that religious-liberty litigators have been on a winning streak lately, but it is worth noting specifically how many of those cases have been won by framing each dispute in terms of anti-discrimination principles. Masterpiece Cakeshop and Fulton v. Philadelphia come to mind, but also the Court’s string of rulings in favor of churches against local COVID restrictions on grounds that they were not treated as well as one or another secular institution.

To some extent this must reflect the simple truth that anti-discrimination principles have become a ruling theme both in law and in public life generally, exceedingly hard to argue against. If you can successfully invoke them you’re well on the way to winning an argument.

Examples from the progressive side are legion. But conservatives too are now apt to couch gripes about, say, social media moderation in terms of discrimination. Companies with a no-guns-on-premises rule are “discriminating” against gun-owning employees, we’ve heard.

And so on. Why, it was asked, should cruise ship lines or nurse staffing agencies be permitted to engage in “discrimination” toward the unvaccinated?

Now, most of us would rather win arguments than lose them, and it is only natural to gravitate toward whichever framing is most likely to do that. Compare “freedom to marry” (for the record, the phrase I favor) to the more widely employed “marriage equality.” I’d argue, though, that something is often lost in the pressure to re-couch claims as equality claims. Sometimes what’s really on our mind is something else — individual liberty, rights of self-defense or bodily integrity, fair process, institutions that work.

In the religious freedom context, there is a strong logic to the idea that the Free Exercise Clause implies a robust principle that churches and their institutions may not be singled out for worse treatment as against otherwise comparable entities. But that’s just one component of free exercise; there have to be others. In Cato’s brief, for example, Ilya and Trevor point out that parents’ right to direct the religious upbringing of their children is a basic component of free exercise encroached upon by the Maine law. To take a different example, the Court has recognized in the Hosanna-Tabor line of cases that free exercise requires the state to respect churches’ internal autonomy, quite aside from equality concerns about whether it treats secular institutions the same way.

Maybe churchgoers want freedom of worship for its own sake, not because they want to ensure churches are treated at least as well as drugstores in COVID regulations. Maybe fairness and benefit to kids are even better arguments for school choice in Maine than equality! But — in today’s climate of jurisprudence — we may not get a chance to find out any time soon.