US Supreme Court's conservative majority signals support for Catholic preschools in Colorado funding case

The US Supreme Court's conservative majority offered clear support on Tuesday for Catholic preschools that claim Colorado's taxpayer-funded programme improperly excludes them by unconstitutionally intruding on their religious rights.

At issue is whether private education institutions that deny admission to children of LGBTQ+ parents violate state anti-discrimination laws, and can therefore be denied a generally applicable public benefit.

In a lively two-hour oral argument, the justices debated competing interests involving both religious liberty and a state’s interest in ensuring equal opportunity for gay and lesbian parents.

Justice Sonia Sotomayor told the lawyer for the plaintiffs that, given Catholic teachings, a homosexual family was unlikely to choose one of these schools, but that should be their choice, not the state’s choice to exclude them. She said the plaintiffs wanted an official statement by the state that it would subsidise them with public money even though they claim a right to reject children.

Justice Brett Kavanaugh said the state’s motives, however well-intentioned, were promoting a kind of conformity that is not constitutionally permissible. He asked the state’s attorney why not seek a win-win, saying there were plenty of opportunities to respect the rights of religious believers and respect the ability of LGBT parents to find, among the 2,000 Colorado schools, an appropriate fit for their children. He said it seemed like a solution in search of a problem that was unnecessary to create this clash.

Colorado established a Universal Preschool Programme in a 2020 ballot measure, distributing public funds for participating schools, with the requirement they provide eligible children an equal opportunity to enrol and receive preschool services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability.

Two Catholic parishes sued, arguing the policy targets their sincerely held beliefs about same-sex marriage. The archdiocese in the state manages 34 preschools, with a policy to admit only students from families who support Catholic ideology, including on same-sex relationships and gender identity.

They seek exemptions to the Colorado law, arguing their exclusion is a form of religious discrimination in violation of the First Amendment. The Trump administration has signalled its support of the religious plaintiffs.

The state counters that its public benefit conditions are neutral and generally applied to every preschool. It provides a $6,300 annual benefit per child for up to 15 hours a week of preschool, with money coming from a tobacco tax.

Officials told the nine-member bench that religious schools are free to participate but must abide by nondiscrimination laws, similar to those affecting low-income and disabled students.

Justice Amy Coney Barrett asked what the difference was between explicitly excluding Catholic schools and choosing to impose a condition that the state knows those schools will be unable to agree to.

Justice Elena Kagan cited the court’s prior cases, which she said affirmed the idea that religious institutions cannot be treated differently. She said that was not the principle at issue here; the principle at issue was whether they have to be treated better.

Chief Justice John Roberts asked tough questions of both sides and his vote could prove determinative. At one point, he expressed scepticism that recent rulings favouring religious schools should also prevail in the current petition, telling counsel that the law in those cases expressly discriminated against religious schools on its face, which was not the case here.

The current dispute was brought by plaintiffs including St. Mary Catholic School. Erika Nagle, whose children attend the Littleton facility, said two of her children were denied access to the state’s preschool funding programme, leaving her family to cover additional education expenses. “We are being excluded from this benefit because we are Catholic,” Nagle said. She added that two preschools in the archdiocese have been closed down.

The Becket Fund for Religious Liberty represented the plaintiffs in court, arguing the state’s policies are having severe consequences, with enrolment at archdiocesan preschools falling 20 percent and two schools shuttered.

State attorney Helen Norton told the high court, “Colorado welcomes religious preschools” to its programme. She said the only thing Colorado asks is that they comply with the same conditions that every publicly funded preschool must meet, religious and secular alike. The state also said religious entities like Catholic Charities, at least three dozen Christian schools, one Muslim and three Jewish schools continue to participate in the programme.

The case is St. Mary Catholic Parish v. Roy (25-581), with a ruling expected by next spring.