The Supreme Court waded back into the realm of religious liberty Tuesday as the justices heard a case testing whether states can ban Catholic schools from a universal preschool program because those schools exclude families that do not adhere to the church’s teachings on homosexuality.
At issue was Colorado’s universal preschool program, which lets parents choose private schools with the state picking up the tab but prohibits discrimination, including against transgender students or children of same-sex couples.
Several Catholic parishes challenged the law, saying it would bar them from participating in the program, costing parishioners thousands of dollars in tuition that the state should be paying.
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Both sides framed the dispute as a high-stakes constitutional confrontation between religious liberty and LGBTQ rights, against a backdrop of conflicting Supreme Court precedents.
“This is a clash of rights and strong beliefs and strong interests,” said Justice Brett M. Kavanaugh, a Trump appointee to the court.
The court’s Republican appointees seemed to favor the Catholic schools’ position.
“There are 2,000 schools, only 34 Catholic schools [in Colorado]. There are plenty of opportunities to respect the rights of religious believers and respect the rights of LGBT parents to find among the 2,000 schools an appropriate fit for their children,” Justice Kavanaugh said. “It seems like this would be a solution in search of a problem.”
The court’s three Democratic appointees viewed the case as a government matter, saying the schools were seeking a special carve-out to continue discriminating.
“It’s not like this is another way to get at Catholic people; it’s ’We believe in anti-discrimination,’” said Justice Elena Kagan, an Obama appointee. “We’re not going to provide a special accommodation, which is what you are asking for.”
Principal Deputy Solicitor General Sarah Harris, arguing for the United States as amicus curiae in support of the Catholic parishes, disagreed.
“I don’t think it’s a special favor to people to respect a First Amendment right,” she said.
Justice Sonia Sotomayor worried about where to draw the line.
“If it’s a sincere religious exercise to exclude Blacks, this principle would permit the exclusion of those children,” said Justice Sotomayor, an Obama appointee.
The case is the latest in a string of public benefit religion clashes to reach the high court.
In 2017, the justices blocked a Missouri law that funded playground resurfacing grants but excluded churches from applying. Three years later, they ruled that Montana could not exclude religious schools from its tax credits for private school tuition.
In 2022, they ruled that Maine’s tuition assistance program for students in districts without public high schools could not exclude schools with religious curricula.
Chief Justice John G. Roberts Jr. said each of those previous cases involved an express antipathy toward religion. He said Colorado’s preschool program does not reflect that express antipathy toward religion.
Still, he said the effects are “pretty much the same” — hindering the free exercise of religion.
He laid out the looming clash of precedents.
On one side is Sherbert v. Verner, a 1963 case that held that states cannot deny unemployment benefits to someone whose religious beliefs prevent them from working on the Sabbath.
On the other side is Employment Division v. Smith, a 1990 case that upheld the denial of unemployment benefits to two men who were fired for their use of peyote as part of the religious practices of the Native American Church.
“It seems you’re quite interested to bury Sherbert,” the chief justice told Helen Norton, an attorney for Colorado. “Nothing in our precedent has backed away from Sherbert.”
On the other hand, he said, the religious groups seemed eager “to bury Smith.”
Colorado said its program lets schools teach whatever they want, including their religious faiths.
The only requirement, Ms. Norton said, was that schools not discriminate.
She said there was no evidence that Colorado was trying to block religious schools and the rule was not a pretext to prevent them from joining.
That surprised some of the justices, who wondered how the state had failed to see the clash coming.
Justice Amy Coney Barrett pointed out that Colorado has been to the high court repeatedly, with cases challenging anti-discrimination policies used against a cake shop and a website designer.
“It’s hard to see how this wasn’t seen coming,” Justice Barrett said.
Justice Kavanaugh said it seemed that the state “provoked” the issue by refusing the Catholic preschools’ requests.
Ms. Norton said families must have all the options that fit their schedules.
“Families are harmed when they’re turned away by a publicly funded school that makes their lives work,” she said.
Justice Kavanaugh countered that the state does allow single-sex preschools, which he said could limit a family’s choice.
The case is St. Mary Catholic Parish v. Roy.
Lisa Roy is the executive director of Colorado’s Department of Early Childhood.
A decision is expected by the end of the court’s term in summer 2027.
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