The U.S. Supreme Court heard arguments Tuesday over a challenge filed by two Colorado Catholic preschools, arguing they should be admitted to the state’s free education system despite their rejection of children of LGBTQ+ parents.
A ruling in St Mary Catholic Parish v Roy could reshape the relationship between religious freedom and non-discrimination laws in the United States.
Catholic preschools say they were excluded from a 2023 state funding package that provides 15 hours a week of state-funded preschool and want the same benefits extended to them. Colorado says that schools “remain welcome to participate” in the program, but only if they agree to the same equal opportunity requirements that apply to all other publicly funded preschools – public and private, secular and religious.”
But to join the program, Colorado says, schools must agree to “offer 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.”
The plaintiffs argue that making funding conditional on acceptance of this agreement amounts to illegal religious discrimination under the First Amendment guarantee of religious freedoms.
The case – essentially a conflict between religious freedom and non-discrimination laws – is making its way through the court system. A lower appeals court sided with the state, but acknowledged that the top court had previously ruled that states “cannot categorically deny these funds to religious institutions.”
In the lower court’s view, the rulings do not apply to the current case because Colorado “did not exclude” religious preschools from its funding program and “actively welcomed and solicited their participation.”
The archdiocese says the state allows participating preschools “to discriminate in favor of LGBTQ families and other groups,” such as “gender nonconforming children,” “children of color,” or members of the “LGBTQ community.”
Nicholas Reaves, an attorney for the Becket Fund for Religious Liberty, a firm that litigates religious liberty cases, told the National Catholic Reporter that Colorado has “denied families…the opportunity to use this funding in Catholic preschools, simply because those preschools have religious beliefs that the state doesn’t like.”
During oral arguments Tuesday, Reaves said the schools “ask all families who enroll to be open and supportive of the teachings of the Church. Because of this sincere religious exercise, the state has denied Colorado families the opportunity to use universal preschool funding in Catholic schools.”
Politico reported that the court’s conservative justices appeared sympathetic, with Justice Neil Gorsuch asking whether the justices had “wasted our time over the last 10 years” on three cases that addressed similar constitutional questions regarding religious liberties. But the three liberal justices present seemed skeptical of the discrimination claim.
Justice Ketanji Brown Jackson asked how the court should view the fact that some Catholic preschools are already participating in the programs.
Justice Elena Kagan seemed unwilling to accept that the state would implement its “neutral anti-discrimination principle” to discriminate against religious schools; and Justice Sonia Sotomayor said Catholic schools “are not excluded on their face…they choose not to participate because they won’t get an exemption. So it’s their choice.”
In an amicus brief submitted to the court, the United States Conference of Catholic Bishops says Colorado disqualified preschools “solely because of their adherence to Catholic doctrine.”
The lower court’s decision, the conference said, “will encourage other states and municipalities to discriminate against the rights of followers of any religion by enacting seemingly neutral laws that are in fact discriminatory.”
If allowed to stand, he adds, “the resulting damage to the country’s social support infrastructure would be immense.”
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