A majority of U.S. Supreme Court justices on Tuesday appeared inclined to require Colorado to allow Catholic preschools to participate in the state’s universal prekindergarten program without signing an anti-discrimination pledge that covers sexual orientation and gender identity.
The case of St. Mary Catholic Parish v. Roy holds implications well beyond preschool. The court seems likely to continue a line of recent decisions that have allowed religious schools to participate in school choice programs. It will also answer whether private religious schools participating in such programs must allow families with same-sex parents or gay or transgender children. And a decision for the Catholic Church here could be felt in the public schools.
“Is the next case parents in a public school saying it’s really important to my religious beliefs that my child not be educated with children of same-sex parents?” Justice Elena Kagan asked during the two-hour argument.
But several of the court’s more conservative members appeared more sympathetic to the challengers of the anti-discrimination requirement, who argue that it runs counter to church teachings on sexuality and same-sex marriage.
Justice Samuel A. Alito Jr. said, “We have here a requirement that has a very severe impact on certain religions, and that was something that everybody could have anticipated. And we have little evidence of a practical problem—little evidence, if any evidence … that there are LGBTQ couples who cannot find other preschools to send their children to.”
Justice Brett M. Kavanaugh said there was a “clash of rights” between the free exercise concerns of religious adherents and the right to same-sex marriage recognized by the Supreme Court.
“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 [pre]schools [an] appropriate fit for their children, which could, in fact, be at one of the Catholic preschools, depending on their own beliefs about that, and you avoid the clash,” he said. “I’m just trying to figure out why we’re here.”
A state’s major expansion of pre-K
The Colorado case involves a 2020 ballot measure establishing a universal pre-K program, which offers every 4-year-old in the state up to 15 hours of free preschool per week.
Colorado’s pre-K program is open to public, private, and religious providers alike, but all must sign an agreement to adhere to the state’s quality standards, which include a nondiscrimination requirement that covers, among other things, religious affiliation, sexual orientation, and gender identity.
“Colorado welcomes religious preschools to [universal pre-K],” said Helen Norton, Colorado’s deputy solicitor general. “The only thing Colorado asks is that they comply with the same conditions that every publicly funded preschool must meet, religious and secular alike.”
And under the program, “faith-based preschools remain free to teach their religious beliefs, including their beliefs about sex or gender or marriage,” Norton said. But they must be open to all, regardless of whether the students’ parents are in a same-sex union.
The Roman Catholic Archdiocese of Denver, which oversees 34 Catholic preschools, believes the equal-opportunity mandate interferes with Catholic teaching on sexual orientation and gender identity.
“The Archdiocese of Denver schools exist to pass on the faith to the next generation,” said Nicholas R. Reaves of the Becket Fund for Religious Liberty, the organization representing the Catholic challengers. “To do this, they ask all families who enroll to be open to and supportive of the church’s teachings. Because of this sincere religious exercise, the state has denied Colorado families the ability to use Universal Preschool funding at Catholic schools.”
The Denver Archdiocese and other faith-based preschool providers sought a religious exemption from the nondiscrimination requirement, but the Colorado Department of Early Childhood said no.
“I cannot grant an accommodation to a nondiscrimination … statement that’s in statute,” Lisa Roy, the department’s executive director, testified in a 2023 deposition.
The state’s refusal to provide an exemption was challenged under the First Amendment’s free exercise of religion clause by St. Mary and one other church in the archdiocese, as well as one family in the parish that says it missed out on some $12,000 in state pre-K aid because St. Mary could not participate in the state program.
The St. Mary case is a followup to three recent cases in which the Supreme Court expanded its approach to government aid flowing to religious schools. The court’s 2017 ruling in Trinity Lutheran Church of Columbia v. Comer, its 2020 decision in Espinoza v. Montana Department of Revenue, and its 2022 ruling in Carson v. Makin all overturned state exclusions of religious schools from generally available aid programs such as playground grants, scholarship tax credits, and tuition aid.
The most recent of those, Carson, said the state of Maine’s exclusion of religious schools from a program providing state aid for tuition covering students from towns without public high schools failed strict scrutiny under the free exercise clause.
The lawsuit argues that Colorado’s equal-opportunity mandate violated the Carson decision by excluding the Catholic schools from the pre-K program based solely on their religious character and exercise.
But two lower federal courts applied Employment Division v. Smith, the 1990 Supreme Court decision that says the free exercise clause cannot exempt individuals from neutral, generally applicable laws. The courts held that the pre-K program’s nondiscrimination requirements met that standard.
‘A special rule’ for faith-based schools?
In addition to Kagan, the court’s two other most liberal members also appeared supportive of Colorado.
“When Colorado says anyone who receives these funds has to be open to everyone and can’t discriminate, what you’re asking for in the context of this free exercise claim is a special rule for religious schools to be able to not follow that condition,” Justice Ketanji Brown Jackson told Reaves.
Justice Sonia Sotomayor told Reaves, “Your bottom line is—let’s get to it—your school can reject a child because their parents are homosexual.”
Reaves responded, “The bottom line is, if it’s a public benefit” balanced against the “sincere religious belief” of the church, then the church’s beliefs should prevail.
Chief Justice John G. Roberts Jr., who wrote the three decisions expanding private school choice programs to include religious schools, and who dissented when the court recognized same-sex marriage, asked tough questions of both sides.
But the court’s five other conservatives—Justices Clarence Thomas, Neil M. Gorsuch, and Amy Coney Barrett in addition to Alito and Kavanaugh—suggested their support for the challengers.
A decision in the case is expected by next June.
