WASHINGTON — Tackling the latest in a series of cases pitting LGBTQ and religious rights, the Supreme Court will consider Tuesday whether Catholic entities should be exempt from state anti-discrimination rules in order to participate in a taxpayer-funded preschool program.
In the Election Day session, the justices will weigh whether Colorado’s refusal to grant an accommodation violates the religious rights of the Archdiocese of Denver and other plaintiffs under the Constitution’s First Amendment.
It is the latest in a series of cases in which Christian plaintiffs have opposed anti-discrimination measures aimed at protecting LGBTQ rights. Most of the cases considered by the Supreme Court over the past decade have come from Colorado.
The court has a 6-3 conservative majority that regularly favors religious rights in cases brought by Christian groups.
At issue is a provision in state law that prohibits preschools from participating in the state-funded program if they deny admission to children based on the child’s or parents’ sexual orientation or gender identity.
Because Catholic doctrine does not recognize same-sex relationships or transgender status, the plaintiffs say the rule conflicts with their religious rights.
The case is “simple,” archdiocesan lawyers from religious liberty group Becket said in court papers, because Colorado “knowingly excluded Catholic preschools solely because of their religious exercise.”
The Catholic plaintiffs benefit from the support of the Trump administration.
The preschool program, approved in a statewide referendum in 2020, provides public funds for parents to send their children to the preschool of their choice.
State lawyers, led by Attorney General Phil Weiser, a Democrat, said in their own court filing that religious schools can and do participate in the program as long as they agree to abide by the anti-discrimination provision.
Catholic nursery schools “want to receive public funding without respecting these conditions”, they add.
The case before the justices Tuesday focuses on the long-standing question of whether excluding religious groups from certain government programs violates the Constitution’s First Amendment, which protects the free exercise of religion.
In a 1990 decision entitled Employment Division v. Smith, the Supreme Court said religious exemptions are not required when a law applies equally to everyone.
The court has not gone so far as to overturn that decision in recent cases, although it has ruled in favor of religious plaintiffs. In a notable ruling in 2021, the court ruled that a Catholic group could not be excluded from a foster care program in Philadelphia because of its opposing views of same-sex couples.
Catholic opponents in the Colorado case argue, among other things, that the state’s curriculum already contains certain loopholes that allow schools to exercise some discretion when accepting children. They are allowed, for example, to give priority to children with disabilities and those from low-income families. These allocations “expressly conflict” with the state’s equal access requirement, the protesters wrote in court papers.
In a separate series of recent rulings, the Supreme Court also cleared the way for shifting taxpayer dollars to religious groups, including schools, despite longstanding prohibitions driven by the Establishment Clause of the First Amendment, which prohibits government endorsement of religion.
Colorado says its allocation for specialized services for children with disabilities and low-income families is consistent with its equal access approach because it “advances Colorado’s interests” by ensuring that disadvantaged people are not denied entry to preschools, state attorneys wrote.
Additionally, preschools run by Catholic Charities participate in the public program. This organization has a different mission than preschools run directly by the Church and does not require participants to conform to Catholic teachings.
Other plaintiffs in Tuesday’s case are St. Mary Catholic Parish in Littleton and Bernadette Catholic Parish in Lakewood, as well as two St. Mary parishioners, Daniel and Lisa Sheley. The Sheleys have seven children, with one in kindergarten and another soon to follow.
The Sheleys were unable to receive more than $12,000 in tuition assistance because they chose to send their children to Church preschool, their attorneys said.
The archdiocese operates a total of 34 preschools in the state.
Challengers filed suit in 2023 but lost in lower courts before asking the Supreme Court to rule.
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