Colorado's requirement that preschools accepting state money enroll children regardless of sexual orientation or gender identity drew sustained skepticism from the Supreme Court's conservative majority on Tuesday, during two hours of arguments in St. Mary Catholic Parish v. Roy.
The Archdiocese of Denver, which oversees 34 Catholic preschools, asked Colorado for an exemption from the nondiscrimination clause in its universal preschool program. The state refused, telling the archdiocese its schools could not "discriminate against children or families in violation of state statute," CBS News reported.
Together with two of its parishes and one family, the archdiocese sued, arguing that exclusion from the program violated the Free Exercise Clause. Lower courts ruled for Colorado, holding that the rules on sexual orientation and gender identity apply to all providers and are neutral.
Justice Amy Coney Barrett pressed Helen Norton, Colorado's deputy solicitor general, on whether the state could simply bar Catholic, evangelical or Orthodox Jewish schools outright. "Then explain what the difference is between that and choosing to impose a condition that you know that those schools would be unable to agree to," Barrett said. She suggested the rule would "push out" families and schools holding traditional beliefs.
Brett Kavanaugh noted that more than 2,000 preschools take part in the program and only 34 are run by the archdiocese. "Why not seek the win-win?" he asked Norton, adding that LGBT parents have plenty of other providers to choose from.
Samuel Alito raised Colorado's recent losses at the court in religious liberty disputes involving a baker, a website designer and a counselor. "We have the state's record" in First Amendment cases, he told Norton.
Norton said Colorado "welcomes" religious preschools and asks only that they meet the same conditions as every other publicly funded provider. Schools remain free to teach their beliefs on sex, gender and marriage while receiving state money, she said.
Nicholas Reaves of the Becket Fund for Religious Liberty, arguing for the archdiocese, said Colorado was withholding a public benefit because of the schools' religious exercise.
The court's three liberal justices questioned whether the church was seeking preferential treatment. Elena Kagan said the principle from a 2022 Maine tuition case was that states cannot treat religious institutions differently. "The principle at issue here is, do you have to treat them better?" she said. Ketanji Brown Jackson called the request a "special rule" allowing schools to turn away children based on a parent's sexual orientation or gender identity.
Colorado voters approved the 2020 ballot measure that created the program, which covers 15 hours of preschool a week, worth more than $6,000 a year, at public, private, faith-based and secular providers. According to the state, roughly 40,000 children qualify, spread across almost 2,000 providers.
NBC News streamed the arguments live.
The 34 archdiocesan preschools have stayed out of the program while the litigation continues.