The Supreme Court religious schools funding case drew sharp lines Tuesday as the conservative majority signaled support for a Catholic preschool challenging Colorado’s requirement that publicly funded preschools be open to all families.
During two hours of arguments, several Republican-appointed justices questioned Colorado’s decision to tie participation in its universal preschool program to compliance with an equal opportunity rule that bars exclusion of LGBTQ families. They suggested that enforcing nondiscrimination rules in this way could indirectly penalize religious beliefs.
Justice Samuel Alito said that when a state adds a condition that certain religions cannot accept, the key question becomes whether the state acted with intent to discriminate against those religions.
St. Mary Catholic Parish says it was left out of Colorado’s universal preschool program because the school enrolls only families who support the Catholic Church’s teachings on sex and marriage. The parish sued in 2023 after the state denied a religious exemption to its equal opportunity requirement.
Two lower courts rejected the lawsuit, concluding the program did not expressly discriminate based on religion. But the high court seemed inclined to reverse, drawing on recent First Amendment decisions that expanded access to public benefits for religious institutions.
In Trinity Lutheran v. Comer in 2017, the court ruled churches cannot be excluded from neutral aid programs. In 2020’s Espinoza v. Montana Department of Revenue, the court said states cannot bar aid to schools controlled by churches, and those decisions led to the 2022 ruling in Carson v. Makin, which held that state-funded school choice programs must include religious schools.
Chief Justice John Roberts said the effect of the Colorado rule resembles the policy at issue in Carson, by preventing schools from receiving funding based on their religious beliefs.
Justice Amy Coney Barrett questioned why Colorado did not anticipate conflict given the court’s recent rulings curbing the state’s efforts to enforce LGBTQ protections in cases involving a wedding cake baker, a website designer, and a challenge related to conversion therapy.
Justice Neil Gorsuch suggested states have enacted rules like Colorado’s to get around the court’s protections for religious exercise.
Supreme Court religious schools funding debate splits the bench
The three Democratic-appointed justices framed the dispute as a bid to authorize discrimination against LGBTQ families. Justice Sonia Sotomayor said the approach invites excluding children of same-sex couples or children who are transgender on the theory that exposure itself is a problem.
Justice Ketanji Brown Jackson compared the exclusion of LGBTQ families to religious justifications once used to discriminate based on race, saying there is no principled distinction between a faith-based objection to children of gay parents and one to children of Black parents.
Justice Elena Kagan characterized the case as a request for special treatment and called it far-fetched to suggest Colorado covertly targeted religious beliefs.
St. Mary’s is asking the court to apply strict scrutiny to funding conditions that burden protected rights. Kagan questioned whether the court should repeatedly weigh religious liberty against state nondiscrimination interests across many future disputes.
Conservative justices appeared unconvinced by those concerns. Gorsuch said he did not see how applying strict scrutiny would be catastrophic, and Justice Brett Kavanaugh noted that the court’s recognition of marriage equality emphasized respect for religious believers with differing views.
Kavanaugh said that when the court recognized a right to same-sex marriage, it also underscored the importance of respecting the rights of people, especially those with religious convictions, and ensuring both sets of rights are honored going forward.
