Supreme Court Conservatives Lean Toward Catholic Preschools in Colorado Case
Justices Kavanaugh and Barrett pressed Colorado at argument, while Chief Justice Roberts asked hard questions of both sides and may decide the outcome.
The Supreme Court's conservative majority signaled sympathy Tuesday for two Catholic parishes that say Colorado cannot bar them from its universal preschool program over their religious teachings on sexuality. The justices heard arguments in St. Mary Catholic Parish v. Roy, and a decision is expected by next spring.
Colorado voters created the Universal Preschool Program in a 2020 ballot measure. The state pays $6,300 per child a year for up to 15 hours of preschool a week, funded by a tobacco tax. Participating schools must give eligible children an equal opportunity to enroll regardless of several characteristics, including sexual orientation. The Archdiocese of Denver runs 34 preschools that admit only families who support Catholic teaching, including its positions on same-sex relationships and gender identity. The parishes say the rule targets their beliefs.
The Becket Fund for Religious Liberty represents the plaintiffs, including St. Mary Catholic School in Littleton. It says enrollment at archdiocesan preschools has fallen 20 percent and two schools have closed. Erika Nagle, whose children attend the Littleton school, said two of her children were denied access to the program. "We are being excluded from this benefit because we are Catholic," she told Fox News Digital. The Trump administration backs the parishes.
Colorado's lawyer, Helen Norton, told the court that "Colorado welcomes religious preschools." The state says about three dozen Christian schools, one Muslim school, three Jewish schools and Catholic Charities take part, and that all must follow the same conditions as any publicly funded preschool.
Several conservative justices pushed back on that argument. Justice Amy Coney Barrett asked why excluding Catholic schools outright is different from imposing a condition the schools "will be unable to agree to." Justice Brett Kavanaugh asked, "Why not seek the win/win?" and called the state's approach "a would-be solution in search of a problem," saying its well-intentioned goals promote a conformity the Constitution does not allow.
Chief Justice John Roberts questioned both sides and may be the deciding vote. He noted that earlier rulings favoring religious schools involved laws that expressly discriminated against them, which he said is not the case here. Justice Elena Kagan said the question is whether the state must treat religious institutions better than others, not whether it can treat them differently. Justice Sonia Sotomayor said Catholic teaching makes it unlikely a same-sex family would pick these schools, but that the choice should be theirs, and she said the parishes want the state to subsidize schools that reject children.
The stakes go beyond preschool. The court could narrow a 36-year-old precedent, Employment Division v. Smith, which held that religious belief does not exempt people from broadly applicable laws. Recent cases have seen the court side with a Colorado baker, a mental health counselor and a website developer who challenged state anti-discrimination rules, and conservative justices led by Samuel Alito have increasingly favored religious claimants under the Free Exercise Clause.
