A majority of the Supreme Court signalled on Tuesday it would allow Catholic preschools receiving taxpayer money to deny enrollment to children of same-sex couples, potentially delivering another significant win for religious rights in schools. The court’s conservative majority was unconvinced that a Colorado law, which bars discrimination based on sexual orientation and gender in publicly funded preschools, could be squared with recent high-profile precedents that expanded the ability of those religious schools to receive public money. Broadly, the case represents a clash between First Amendment religious protections and laws intended to protect gay and transgender Americans from discrimination. When those conflicts have come to the Supreme Court in recent years, religious claims have won time after time. And there was no indication over the course of two hours of an Election Day oral argument that the Colorado dispute would be any different. Justice Brett Kavanaugh, at one point, questioned why Colorado had “provoked” the confrontation and missed a “win-win” by enforcing the discrimination provision and not allowing Catholic schools to opt out to “respect religious rights.” “It seems like this is a would-be solution in search of a problem,” Kavanaugh, a member of the court’s conservative wing, told the Colorado attorney defending the state law. “I’m just trying to figure out why we’re here.” In many ways, though, the case was of the court’s own making. For years, the conservative majority has expanded the ability of religious schools to receive public funding — chipping away at a wall many Americans understood to have long separated church and state. But those decisions largely steered clear of questions about what would happen when those publicly funded religious schools declined to enroll the child of a gay couple or use a student’s preferred pronoun in the classroom. Sensing that Colorado’s argument was likely a lost cause, the court’s three-justice liberal wing repeatedly leaned into an attorney representing the Catholic parish and a Colorado family that sued to challenge the state’s anti-discrimination law. “What you’re basically saying is, ‘We can exclude people merely because the exposure to them would cause us harm’ — that’s really what you’re saying,” Justice Sonia Sotomayor told the attorney for the Trump administration, which opposes Colorado’s law. “That is completely what you’re saying: We can exclude children of same-sex marriage, we can exclude children who might have transgender feelings or beliefs because exposing other children to them creates a problem.” Sarah Harris, arguing for the Justice Department, rejected that framing. Instead, she said, the Catholic schools were exercising their religion by “requiring parents to agree with a school that they’re going to adhere to tenets of the Catholic faith and act consistently with them.” Colorado enacted a ballot provision in 2020 that provides state funding for a universal preschool program, allowing both public and private schools to take part. The program includes a nondiscrimination provision that requires each school receiving public money to provide eligible children an equal opportunity to enroll, regardless of race, religious affiliation, sexual orientation, gender identity and other factors. The appeal, filed by the religious public interest firm Becket, appeared ready-made for a 6-3 conservative court that has repeatedly sided with religious interests. In one series of decisions, the court has made clear that when the government opens educational funding programs up to public and private schools, it cannot bar religious schools from taking part just because they are religious or offer religious instruction. The court in 2022, for instance, barred Maine from excluding religious schools from a tuition assistance program that allows parents to use vouchers to send their children to public or private schools. Maine responded to that decision by embracing language like Colorado’s, technically allowing religious schools to take part but imposing anti-discrimination language the Catholic Church says it cannot bear. Colorado’s history of cases involving religion and LGBTQ issues At least some conservative justices seemed frustrated with the idea that states could be using such anti-discrimination provisions as a pretext to bar religious participation. “If you know that the effect of choosing that requirement will push out those with contrary beliefs, how is that different?” conservative Justice Amy Coney Barrett asked Colorado’s deputy solicitor general, Helen Norton. Norton said there is “zero evidence” that the state targeted religious schools with its anti-discrimination language. She noted the state encouraged religious schools to take part, and that some religious schools — including Catholic schools — were engaged in the program. And Colorado’s anti-discrimination provision, she said, was enacted before the Supreme Court’s 2022 decision in the Maine case. A decision in the Colorado dispute is expected by the end of June. A few conservative justices noted that many claims pitting religious rights against LGBTQ Americans had come from Colorado in recent years. Justice Samuel Alito, among the court’s most ardent defenders of religious rights, pressed Norton about her “state’s record in recent First Amendment cases,” ticking through a list that included an opinion this year endorsing a religious counselor’s challenge to Colorado’s ban on “conversion therapy” and a 2018 decision in which the court ruled in favor of a Colorado baker who refused to bake a cake to celebrate the marriage of a same-sex couple. “What should we make of all of this?” Alito asked. “Your honour,” Norton said, “there is no evidence of any sort of any religious hostility or animus” in the state’s preschool program. Justice Elena Kagan, a member of the court’s liberal wing, seemed concerned about the long-term consequences of a loss for Colorado. She speculated that the next case could involve a family whose child was enrolled in a public school and who argued that allowing their child to attend classes alongside a gay or transgender peer burdened their religion. “It’s going to be pretty easy for religious groups or religious individuals to come forward and say this would be a substantial burden on my religious beliefs,” Kagan said. “With respect to public schools alone, these inquiries could go on forever.”
