WASHINGTON — In its latest chapter on religion in schools, the Supreme Court debated Tuesday whether Colorado may fund private preschools for 4-year-olds but exclude Catholic schools that refuse to serve same-sex parents and their children.
The court’s six conservatives, all of whom were raised Catholic, leaned in favor of ruling the state was discriminating based on religion.
The state offered funding to all preschools but said they must abide by an “equal opportunity” rule that forbids discrimination based on sexual orientation or gender identity.
Justice Amy Coney Barrett said state officials “chose to impose a condition” they knew those Catholic schools “will be unable to agree to.”
In contrast, the court’s three liberals said the Catholic schools were not seeking equal treatment but a new right to discriminate.
“You are asking for a special rule for religious schools,” said Justice Ketanji Brown Jackson.
Justice Sonia Sotomayor said the state opened the funding program to all schools, including church-related schools. “The Catholic schools are not being excluded. They’re choosing not to participate because they won’t get an exemption,” she said.
In the last decade, the court’s conservative majority has strengthened the 1st Amendment’s protection for the “free exercise of religion.”
States and local governments need not offer public funds to private groups and entities, the justices said. But if they do so, they may not single out religious schools or people and deny them public funding that is open to all.
They struck down laws in Minnesota and Maine that denied scholarships or school funds to students who enrolled in a religious school. And they ruled the city of Philadelphia could not bar Catholic social services from providing foster care because they did not work with same-sex couples.
Despite that history, Colorado adopted a strong “equal opportunity” law in 2022 to go with its new state funding for preschools.
The state voters had approved a ballot measure in 2020 to provide public funding for a year of preschool prior to kindergarten. Both public and private schools were encouraged to participate.
The state pays for 15 hours per week and provides parents about $6,000 in tuition.
Lawmakers said eligible schools must provide children “an equal opportunity to enroll regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level or disability.”
The Archdiocese of Denver oversees 34 Catholic preschools. Parents were told they must support and affirm the teachings of the church, including on matters of gender and marriage.
In light of the new funding law, the church asked for an accommodation that would allow “faith based providers to participate in the program without compromising their sincerely held religious beliefs.”
The state refused. It said “no provider may discriminate against children or families in violation of the state statute.”
St. Mary Catholic Parish in Littleton, Colo., and two of its parents sued, alleging a violation of the 1st Amendment.
Their attorneys — the Becket Fund for Religious Liberty — argued that no LGBTQ+ family has been harmed or claimed discrimination under the preschool funding law, while “thousands of Catholic families have zero Catholic preschools available to them.”
They lost before a federal judge and the 10th Circuit Court. Those judges said the state did not target the Catholic schools or treat them differently from others because of their religious beliefs.
The Supreme Court agreed in April to hear the case of St. Mary Catholic Parish vs. Roy.
During Tuesday’s argument, Justice Brett M. Kavanaugh voiced dismay over how this case arose.
“This seems like a would-be solution in search of a problem. Why are we here?” he asked a state attorney.
He and Barrett said same-sex couples did not seek to have their children enrolled in Catholic preschools. Meanwhile, other parents were denied state funds because of the marriage and family policies of the Catholic parishes.
The court is likely to hand down a decision in several months.