The U.S. Supreme Court heard oral arguments Nov. 3 in a Colorado case that could fundamentally alter the balance between nondiscrimination and religious freedom laws.
And all indications were that the court’s conservative majority is inclined to allow faith-based schools to receive taxpayer funds while discriminating against certain classes of students, in this case those with same-sex parents.
The dispute stems from St. Mary Catholic Parish et al., v. Lisa Roy, which pits two Catholic churches, the Denver Archdiocese and local parents against a state requirement that organizations participating in its universal preschool program comply with its equal-opportunity provisions.
Faith-based groups can receive state funds to participate in the program without having to forgo religious programming but are not allowed to deny enrollment due to the sexual orientation or gender identity of students or parents in the process. The policy was upheld at the federal district and appellate levels before the U.S. Supreme Court agreed to take up the case in April.
The case comes before a court that has increasingly sided with conservatives on religious liberty issues expressed through a willingness to protect the discriminatory practices of faith groups as constitutionally protected free speech.
But plaintiffs’ attorneys said the discrimination in the Colorado preschool case is being imposed by the state’s accommodation requirement for the program, not by their clients’ objection to students with LGBTQ parents.
Nicholas Reaves
“Colorado has flexibly interpreted the mandate to accommodate important secular interests, but it’s called the same law, a hard limit when petitioners sought a religious accommodation,” said Nicholas Reaves, senior counsel with the Becket Fund for Religious Liberty, in his opening remarks before the justices.
“Letting families use Universal Preschool funding at Catholic schools won’t take away a single seat from the over 2,000 preschools already participating in the program,” he said. “In fact, letting Catholic schools in will create more seats for everyone, even for families who disagree with Catholic teachings.”
Plaintiffs in the case contend their desire to discriminate against LGBTQ families is a religious conviction.
Colorado Deputy Solicitor General Helen Norton countered that the state welcomes faith-based preschools into the program. “The only thing Colorado asks is that they comply with the same conditions that every publicly funded preschool must meet, religious and secular alike. UPK (Universal Preschool) is neutral toward religion.”
Justice Brett Kavanaugh pressed Norton to explain how this could really be a problem when the number of Catholic preschools is far outweighed by other options.
“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 schools (an) appropriate fit for their children … and you avoid the clash,” Kavanaugh said. “Why has this been provoked when there’s an ability for everyone to go to the school, a good school, that’s a fit for them and respect religious rights?”
Helen Norton
Norton responded that the central issue for parents of young children isn’t always a preschool’s curriculum or its religious values, but if its hours and location can help manage families’ complicated schedules work.
“Same-sex parents, like religious parents, like all parents, often seek to place their children in schools that work best for their lives, regardless of the curriculum.”
Colorado wants to ensure its tax dollars are used to fund preschool programs “that ensure equal opportunity, not some opportunity,” to all state residents regardless of class, she added.
Families are harmed when publicly funded schools turn them away, for whatever reason, from preschools that could be immense helps in their lives.
“Think of the parent who needs a school that opens at 7 a.m. so she can get the bus that takes her to work. Think of the parent who needs a school that will take all three of her kids, so she doesn’t have to shuttle them among three different schools. Think of the parent who needs the neighborhood school so that her neighbor can pick up her kids when she can’t get home in time,” she explained.
Conservative Justice Samuel Alito accused Colorado of being consistently on the wrong side of First Amendment issues by referencing its losing record in high-profile Supreme Court cases such as Masterpiece Cakeshop v. Colorado Civil Rights Commission and 303 Creative LLC v. Elenis, both allowing businesses to discriminate against same-sex couples, and Chiles v. Salazar, which protected conversion therapy as a form of free speech.
“So we have here a (pre-K) requirement that has a very severe impact on certain religions and that was something that everybody could have anticipated, and almost must have anticipated, when this requirement was imposed,” Alito said.
Liberal Justice Ketanji Brown Jackson pushed back, warning that granting plaintiffs’ petition would open the door to faith-based individuals and groups being able to seek legal cover for other forms of discrimination in the name of faith.
“Here … the bottom line is that the religious entity does not want to have to commit to opening its schools to children of LGBTQ couples. Couldn’t that same logic support a religious entity who says we don’t want to open our schools to students of races that we disagree with, or ethnicities that we disagree with? Why wouldn’t the same logic from the standpoint of the First Amendment claim be the same?”
The court’s decision in the case is expected in 2027.