Washington — The Supreme Court on Tuesday appeared likely to side with Catholic preschools challenging Colorado’s refusal to exempt them from a nondiscrimination requirement and let them participate in its 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 nondiscrimination rule, since they only enroll families that align with the Catholic Church’s teachings, including on marriage, family and sexual identity.
The state, however, denied the request for an accommodation 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 then sued the state, arguing that their exclusion from the universal preschool program violated the Constitution’s Free Exercise Clause. Lower courts sided with the state and said the sexual orientation and gender identity provisions of the nondiscrimination rule are neutral and apply generally to providers participating in the universal preschool program.
But in arguments that spanned two hours on Tuesday, the court’s conservative majority appeared likely to rule in favor of the Catholic preschools. Such a decision would join a line of recent rulings in which the Supreme Court, which has a 6-3 conservative majority, has sided with religious institutions challenging their exclusion from state benefits programs, opening the door for more public dollars to flow to religious schools.
Oral arguments
Several of the conservative justices repeatedly raised concerns that the nondiscrimination rule was effectively a back-door way to keep religious entities out of the universal preschool program.
“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?” Justice Amy Coney Barrett asked Helen Norton, Colorado’s deputy solicitor general. “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 effect of the nondiscrimination requirement is to “push out” those with traditional beliefs.
“Why not seek the win-win?” Justice Brett Kavanaugh asked Norton about the state’s refusal to exempt Catholic preschools. He noted that there are more than 2,000 preschools that participate in Colorado’s universal preschool program, and 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?”
But Norton, the Colorado deputy solicitor general, said Colorado “welcomes” religious preschools to its 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.
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.
“That’s not the principle that’s at issue here,” she said. “The principle at issue here is, do you have to treat them better?”
Justice Ketanji Brown Jackson said the Archdiocese and its preschools are asking for a “special rule” that would allow them to turn away students based on their or their parents’ sexual orientation or gender identity.
Colorado’s universal preschool program launched after voters in the state approved a ballot measure in 2020 to provide state funding for a new program that intended to make preschool “widely available for free” to all 4-year-olds in the state.
Families are reimbursed for the cost of 15 hours of preschool per week, which amounts to more than $6,000 per year. The state uses a mixed-delivery system, meaning public, private, faith-based and secular preschools can participate. Those that do must sign a contract and meet state quality standards.
The statute that created the universal preschool program also imposed a nondiscrimination rule.
Colorado estimates there are roughly 40,000 children who are eligible for universal preschool across nearly 2,000 providers. The Archdiocese’s 34 Catholic preschools do not participate in the program.
