Supreme Court Appears Likely to Side With Catholic Preschools in Colorado Program Dispute

The Supreme Court on Tuesday appeared likely to side with Catholic preschools that are challenging Colorado’s refusal to exempt them from a nondiscrimination requirement and to let them participate in the state’s universal preschool program.

The nondiscrimination mandate at the center of the dispute, St. Mary Catholic Parish v. Roy, requires participating schools to provide children with an “equal opportunity” to enroll regardless of their race, religion, sexual orientation and gender identity, among other characteristics.

When Colorado was preparing to implement the program, the Archdiocese of Denver, which oversees 34 Catholic preschools, sought an exemption from the rule. The schools enroll only families who align with the Catholic Church’s teachings, including on marriage, family and sexual identity. The state denied the request and said the Catholic schools could not “discriminate against children or families in violation of state statute.”

The Archdiocese, two of its parishes and a family sued the state, arguing that their exclusion from the program violated the Constitution’s Free Exercise Clause. Lower courts sided with the state, finding that the sexual orientation and gender identity provisions of the rule are neutral and apply generally to providers in the program. In arguments that lasted two hours, the court’s conservative majority appeared likely to rule for the Catholic preschools. Such a decision would add to recent rulings in which the Supreme Court, which has a 6-3 conservative majority, sided with religious institutions challenging their exclusion from state benefits programs.

Several conservative justices repeatedly raised concerns that the nondiscrimination rule was effectively a back-door way to keep religious entities out of the program. Justice Amy Coney Barrett asked Helen Norton, Colorado’s deputy solicitor general, “You agree, don’t you, that Colorado could not say that Catholic schools or evangelical schools or Orthodox Jewish schools were excluded from participation in the UPK program?” She added, “Then explain what the difference is between that and choosing to impose a condition that you know that those schools would be unable to agree to.” Barrett suggested the requirement’s effect is to “push out” those with traditional beliefs.

Justice Brett Kavanaugh asked Norton, “Why not seek the win-win?” He noted that more than 2,000 preschools participate in Colorado’s universal preschool program and that only 34 are overseen by the Archdiocese of Denver. “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,” he said.

Justice Samuel Alito raised Colorado’s recent record of losses at the Supreme Court in religious liberty cases, in which the high court sided with a Christian baker, website designer and counselor. “We have the state’s record” in other First Amendment cases, Alito told Norton. “What should we make of this?”

Norton said Colorado “welcomes” religious preschools to 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,” she said, adding that religious preschools can teach their beliefs on sex, gender or marriage and are “free to teach them while receiving public funding.” Nicholas Reaves, a lawyer with the Becket Fund for Religious Liberty who argued on behalf of the Archdiocese, said Colorado is denying Catholic preschools the ability to receive public benefits because of their religious exercise. Holding every publicly funded school to the same conditions reflects a commitment to hearing all parties fairly before judgment (Proverbs 18:17).

The three liberal justices each raised concerns that the Catholic schools were asking for a “special” accommodation from the state that would allow them to discriminate against families based on protected characteristics. Justice Elena Kagan said that the principle the Supreme Court upheld in a 2022 case involving a Maine tuition-assistance program was that the state cannot treat religious institutions differently.

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