The Supreme Court’s conservative majority offered clear support Tuesday for Catholic preschools that claim Colorado’s taxpayer-funded program improperly excludes them by unconstitutionally intruding on their religious rights.
At issue is whether those private education institutions that deny admission to children of LGBTQ+ parents violate state anti-discrimination laws, and can therefore be denied a generally applicable public benefit.
It is the latest high-profile religious rights appeal to reach the high court in recent years, several of them originating from Colorado.
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In a lively two-hour oral argument, the justices debated competing interests involving both religious liberty and a state’s interest in ensuring equal opportunity for gay and lesbian parents.
“I’m hard-pressed to think that, given those [Catholic] teachings, that any homosexual family is going to choose to go to one of these schools, but that should be their choice, not your choice to exclude them,” said Justice Sonia Sotomayor to the lawyer for the plaintiffs. “That’s what you’re asking for… You want an official statement by the State that I will subsidize you with public money even though – because I have a right to reject children.”
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But Justice Brett Kavanaugh said the state’s motives, however well-intentioned, are promoting a kind of conformity that is not constitutionally permissible.
“Why not seek the win/win?” Kavanaugh asked the attorney for the state. “There are plenty of opportunities to respect the rights of the religious believers and respect the ability of LGBT parents to find among the 2,000 [Colorado] schools an appropriate fit for their children.
“It seems like this is a would-be solution in search of a problem that is unnecessary to create this clash,” he added. “There’s an ability for everyone to go to the school, a good school that’s a fit for them, and respect religious rights.”
Colorado established a Universal Preschool Program (UPK) in a 2020 ballot measure, distributing public funds for participating schools, with the requirement they “provide eligible children an equal opportunity to enroll and receive preschool services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability.”
Two Catholic parishes sued, arguing the policy targets their sincerely held beliefs about same-sex marriage.
The archdiocese in the state manages 34 preschools, with a policy to only admit students from families who support Catholic ideology, including on same-sex relationships and gender identity.
They seek exemptions to the Colorado law, arguing their exclusion is a form of religious discrimination in violation of the First Amendment.
The Trump administration has signaled its support of the religious plaintiffs.
The state counters its public benefit conditions are neutral and generally applied to every preschool.
It provides a $6,300 annual benefit per child for up to 15 hours a week of preschool, with money coming from a tobacco tax.
Officials told the nine-member bench that religious schools are free to participate but must abide by nondiscrimination laws, similar to those affecting low-income and disabled students.
As part of its review of the Colorado dispute, the high court will decide whether to narrow a 36-year-old precedent that religious practices do not create exemptions from broadly applicable laws.
The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
The Supreme Court in prior decades had focused on the first part, ensuring a constitutional separation of church and state, when disputes over religious rights reached the public sphere.
But the current conservative bench in the past few years — led by Justice Samuel Alito — has trended toward favoring religious institutions raising “free exercise” claims.
The justices have separately backed a Colorado baker, mental health counselor and website developer, who all challenged the state’s anti-discrimination policies.
The oral arguments Tuesday seemed to divide along ideological lines.
Conservative justices focused on the “free exercise” claims by the Catholic parishes that state requirements for receiving public benefits amounted to religious discrimination.
“Explain what the difference is between [explicitly excluding Catholic schools] and then choosing to impose a condition that you know that those schools will be unable to agree to?” said Justice Amy Coney Barrett.
But Justice Elena Kagan cited the court’s prior cases, which she said affirmed the idea “you can’t treat religious institutions differently.”
“That’s not the principle that’s at issue here,” Kagan said. “The principle at issue here is: Do you have to treat them better?”
Chief Justice John Roberts asked tough questions of both sides and his vote could prove determinative. At one point, he expressed skepticism that recent rulings favoring the rights of religious schools over similar claims should also prevail in the current petition.
“The law in those cases, in each of them, expressly discriminated against religious schools on its face,” Roberts told Reaves. “That’s not the case here,” suggesting Colorado’s law may be applied fairly across the board.
The current dispute was brought by plaintiffs including St. Mary Catholic School.
Erika Nagle, whose children attend the Littleton facility, told Fox News Digital that two of her children were denied access to the state’s preschool funding program, leaving her family to cover additional education expenses.
“We are being excluded from this benefit because we are Catholic,” Nagle said in an interview with Fox News Digital. “And so in a state that preaches inclusion, they are actively going out of their way to exclude a huge chunk of people because of our religious beliefs.
“We have had two preschools in the archdiocese that have been closed down,” she added. “The state is dangling a carrot over here, incentivizing people to leave their faith, to abandon the Catholic education that they want.”
The Becket Fund for Religious Liberty represented the plaintiffs in court, arguing the state’s policies are having severe consequences, with enrollment at archdiocesan preschools falling 20% and two schools shuttered.
The state counters that religious entities like Catholic Charities, at least three dozen Christian schools, one Muslim and three Jewish schools continue to participate in the preschool funding program.
“Colorado welcomes religious preschools” to its program, state attorney Helen Norton told the high court. “The only thing Colorado asks is that they comply with the same conditions that every publicly funded preschool must meet, religious and secular alike.”
The case is St. Mary Catholic Parish v. Roy (25-581), with a ruling expected by next spring.