Supreme Court set to rule that state-funded religious schools can reject children of same-sex couples

A majority of the Supreme Court indicated Tuesday that it would allow Catholic preschools receiving taxpayer money to deny enrollment to children of same-sex couples, potentially bringing another significant victory for religious rights in schools.

The court’s conservative majority was not convinced that a Colorado law, which prohibits discrimination based on sexual orientation and gender in state-funded preschools, could be reconciled with recent high-profile precedents that have expanded the ability of these religious schools to receive public money.

Broadly speaking, the case represents a conflict between the First Amendment’s religious protections and laws intended to protect gay and transgender Americans from discrimination. When these conflicts have come before the Supreme Court in recent years, religious claims have won time and time again. And there was no indication during the two hours of argument on Election Day that the conflict in Colorado would be any different.

Justice Brett Kavanaugh at one point questioned why Colorado “provoked” the confrontation and missed a “win-win” deal by enforcing the discrimination provision and not allowing Catholic schools to opt out to “respect religious rights.”

“It seems like this is a possible solution in search of a problem,” Kavanaugh, a member of the court’s conservative wing, told the Colorado lawyer defending the state law. “I’m just trying to understand why we’re here.”

In many ways, however, the matter was the making of the court itself. For years, the conservative majority has expanded the ability of religious schools to receive public funding, tearing down a wall that many Americans believed had long separated church and state. But those decisions largely avoided questions about what would happen if these state-funded religious schools refused to enroll a gay couple’s child or use a student’s preferred pronoun in class.

Sensing that Colorado’s argument was likely a lost cause, the court’s three-judge liberal wing repeatedly relied on a lawyer representing the Catholic parish and a Colorado family who sued to challenge the state’s anti-discrimination law.

“What you’re basically saying is, ‘We can exclude people simply because their exposure would cause us harm’ — that’s really what you’re saying,” Justice Sonia Sotomayor told the Trump administration lawyer, who opposes the Colorado law. “That’s exactly what you’re saying: We can exclude children of same-sex marriages, we can exclude children who might have transgender feelings or beliefs because exposing other children to them creates a problem.”

Sarah Harris, defending the Justice Department, rejected that formulation. Instead, she said, Catholic schools were exercising their religion by “requiring that parents agree with a school that they would adhere to and act consistently with the tenets of the Catholic faith.”

Colorado passed a ballot provision in 2020 that provides state funding for a universal preschool program, allowing both public and private schools to participate. The program includes a nondiscrimination provision that requires every school receiving public funds to offer eligible children an equal opportunity to enroll, regardless of their race, religious affiliation, sexual orientation, gender identity and other factors.

The appeal, filed by the religious public benefit corporation Becket, appeared ready-made before a conservative court (6 votes to 3) that repeatedly sided with religious interests. In a series of rulings, the court has made clear that when the government opens education funding programs to public and private schools, it cannot prohibit religious schools from participating simply because they are religious or offer religious education. In 2022, for example, the court barred Maine from excluding religious schools from a tuition assistance program that allows parents to use vouchers to send their children to public or private schools.

Maine responded to the ruling by adopting language like Colorado’s, technically allowing religious schools to participate, but imposing anti-discrimination language that the Catholic Church says it cannot support.

Colorado’s history of cases involving religious and LGBTQ issues

At least some conservative justices seemed frustrated that states could use such anti-discrimination provisions as a pretext to ban religious participation.

“If you know that choosing this requirement will have the effect of excluding those who hold contrary beliefs, how is that different? conservative Justice Amy Coney Barrett asked Colorado Deputy Solicitor General Helen Norton.

Norton said there is “no evidence” that the state has targeted religious schools with its anti-discrimination language. She noted that the state had encouraged religious schools to participate and that some religious schools — notably Catholic schools — were engaged in the program. And Colorado’s anti-discrimination provision, she said, was adopted before the Supreme Court’s 2022 decision in the Maine case.

A decision in the Colorado dispute is expected by the end of June.

Some conservative justices noted that many complaints challenging religious rights for LGBTQ Americans have come from Colorado in recent years. Justice Samuel Alito, one of the Court’s most ardent defenders of religious rights, emphasized his state’s “record in recent First Amendment cases,” running through a list that included an opinion from this year approving a religious adviser’s challenge to Colorado’s ban on “conversion therapy” and a 2018 decision in which the court ruled in favor of a Colorado baker who refused to make a cake to celebrate a couple’s wedding of the same sex.

“What should we think of all this? » asked Alito.

“Your Honor,” Norton said, “there is no evidence of any sort of religious hostility or animus” in the state’s preschool program.

Justice Elena Kagan, a member of the court’s liberal wing, seemed concerned about the long-term consequences of a loss for Colorado. She speculated that the next case might involve a family whose child was enrolled in a public school and who claimed that allowing their child to attend classes alongside a gay or transgender peer was a burden to their religion.

“It will be quite easy for religious groups or religious individuals to come forward and say this would be a significant burden on my religious beliefs,” Kagan said. “When it comes to public schools alone, these investigations could go on forever. »