The Supreme Court on Tuesday seemed inclined to rule in favor of a Catholic school that says it has been unfairly excluded from Colorado’s universal pre-K program because it denies enrollment to children of same-sex parents — a policy it argues is protected by the constitutional right to the free exercise of religion.
The case is the latest clash involving the question of whether the Constitution allows Catholic institutions to discriminate against LGBTQ+ people because of church teachings.
Some of the court’s conservative justices, who hold a 6-3 majority, appeared receptive to the argument that the state’s antidiscrimination requirements unfairly exclude families with children at St. Mary Catholic Parish and other preschools in the Denver Archdiocese. The program reimburses parents the cost of 15 hours per week of preschool for all 4-year-olds. As of December, that adds up to about $6,300 per child.
Justice Brett M. Kavanaugh noted that same-sex parents have plenty of options outside of the archdiocese’s preschools, which require parents to sign a statement of “community beliefs” declaring that same-sex marriage is immoral. He suggested Colorado could avoid a “clash of rights” by exempting archdiocese schools from state antidiscrimination requirements.
“Why not seek the win-win?” he asked Colorado’s attorney. “There’s a clash of rights, obviously — the free-exercise right on the one hand, and same-sex marriage right … on the other, but there are 2,000 schools. There are only 34 Catholic schools.”
Much of the skepticism toward St. Mary’s argument came from the court’s liberals, who questioned whether the school should get special treatment in the face of antidiscrimination laws that apply to every other school that receives the funding.
Justice Elena Kagan said St. Mary’s attorneys were asking the justices to go “far beyond” the Supreme Court’s recent precedents that say the state cannot deny generally available funding to religious schools.
“It’s a case where you’re saying … ‘because of religious faith, we need a special exemption — an accommodation, a way of being treated differently with respect to that neutral antidiscrimination principle,’” Kagan said.
St. Mary is among the 34 preschools in the Denver archdiocese that cannot participate in the state’s universal pre-K program because they require that parents sign a statement of “Community Beliefs and Commitments,” in which they agree to accept church teachings “increasingly at odds with” secular culture. That includes agreeing that abortion and same-sex marriage are immoral.
The agreements are meant to ensure families who attend are aligned with the preschool’s Catholic teachings. But it also means the children of gay parents are effectively not allowed to attend. That goes against the state’s mandate that schools cannot discriminate on the basis of race, income level and other protected characteristics such as sexual orientation and gender identity.
The state says schools in the archdiocese would otherwise be able to participate because the program does not exclude schools based on religious affiliation.
“Colorado welcomes religious preschools,” said Helen Norton, a deputy solicitor general for Colorado. “The only thing Colorado asks is that they comply with the same conditions that every publicly funded preschool must meet, religious and secular alike.”
But attorneys for St. Mary say that the nondiscrimination mandate is a burden on its right to free exercise of religion and that it should receive an exception. The case was filed by the school and a couple who say they want to use the benefit at St. Mary.
“This is not a zero-sum game,” said Nicholas Reaves, a lawyer with the Becket Fund for Religious Liberty, a religious legal nonprofit representing St. Mary.
He argued that granting the exception would not deprive any parent of the opportunity to send their child to preschool. Instead, he argued, that would add pre-K seats.
In recent years, the Supreme Court has ruled in several cases that religious rights can exempt individuals from nondiscrimination mandates.
In 2018, the court ruled in favor of a Colorado baker who refused to make a wedding cake for a same-sex couple. Five years later, the justices found that a web designer could refuse to make wedding sites for gay couples on religious and free-expression grounds.
And in decisions over the past decade, the court has also permitted public funds to flow to religious schools. Most recently, in 2022, the court found unconstitutional Maine’s exclusion of religious schools from a tuition assistance program. Because the program allowed parents to use the benefit for secular private schools, it had discriminated against religious schools, the court reasoned in the 6-3 ruling along ideological lines.
Those rulings are part of a winning streak by religious organizations at the Supreme Court. Since 2020, the court has not ruled against a religious group on constitutional free-exercise grounds, according to an analysis that a group of scholars conducted for The Washington Post.
But Justice Ketanji Brown Jackson said St. Mary is asking the court to do something “new and different” from those past cases. She worried that allowing St. Mary to receive an exemption could open the door to other forms of discrimination.
She added: “There’s no principled basis, I think, to distinguish between an entity that says my religious faith says my children can’t go to school with the children of gay people from a religious entity that says my religion says my children can’t go to school with the children of Black people.”
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