By John Kruzel
WASHINGTON, Nov 3 (Reuters) – Conservative US Supreme Court justices appeared sympathetic on Tuesday toward a challenge by Catholic groups to a Colorado law barring anti-LGBT discrimination at publicly funded preschools in a case that could further bolster the rights of religious people and institutions.
The court, whose 6-3 conservative majority has taken a broad view of religious liberty, heard arguments in a bid by the Archdiocese of Denver and other Catholic entities for an exemption from a Colorado preschool funding program’s nondiscrimination requirement. Republican President Donald Trump’s administration backed the Catholic groups in the case.
Preschools receiving public money under Colorado’s program may be public or private, secular or religious. But under the law, preschools must give all children “equal opportunity” to enroll, regardless of the sexual orientation or gender identity of the students or their parents.
Officials in Democratic-governed Colorado have accused the Catholic preschools of seeking legal permission to discriminate against 4-year-olds and their families while receiving taxpayer dollars under the program. Lower courts upheld the program’s protections for LGBT people.
FREE EXERCISE CLAUSE
The case gives the Supreme Court another opportunity to expand the US Constitution’s First Amendment provision called the Free Exercise Clause, which protects the right to practice religion without government interference. Its liberal justices have criticized the conservative majority in recent cases for undermining the separation of church and state.
The conservative justices on Tuesday seemed inclined to view the Free Exercise Clause as protecting not only against explicit discrimination against religious groups but also against conditions placed on certain government benefits that have the same effect.
Conservative Justice Amy Coney Barrett suggested in questions to Helen Norton, a lawyer representing Colorado, there is no practical distinction.
“Explain what the difference is between (explicit exclusion of religious schools) and then choosing to impose a condition that you know that those schools will be unable to agree to?” Barrett asked Norton.
The archdiocese oversees 34 Catholic preschools, according to court papers. Its policy is to admit students only from families who support Catholic beliefs, including on same-sex relationships and gender identity.
Colorado has argued that its equal-opportunity requirements do not intrude on the Free Exercise Clause because they are neutral toward religion and apply generally to participating groups.
“Colorado welcomes religious preschools to (the program). The only thing Colorado asks is that they comply with the same conditions that every publicly funded preschool must meet, religious and secular alike,” Norton told the justices.
In a 2022 case called Carson v. Makin, the court ruled in favor of two Christian families who challenged a Maine program that provided state-funded tuition assistance but had excluded private religious schools.
“I think the effect of the law in Carson is pretty much the same as the effect of the law here. And we said in Carson that it turned on the substance of Free Exercise protections,” conservative Chief Justice John Roberts told Norton. “And I wonder in what way you think this is different than Carson?”
‘A VERY DIFFERENT PRINCIPLE’
The liberal justices pushed back against the argument that the court’s prior decisions favoring religious schools should dictate a similar outcome favoring Colorado’s Catholic preschools.
Liberal Justice Elena Kagan told Nicholas Reaves, the lawyer arguing for the Catholic groups, that the Carson decision upheld “a very different principle” than what he is arguing for. The Carson decision, Kagan said, stands for the principle that “you can’t treat religious institutions differently.”
“That’s not the principle that’s at issue here,” Kagan said. “The principle at issue here is: Do you have to treat them better?”
Conservative Christian legal positions have prevailed in a series of rulings in the past decade at the court including in Colorado cases involving a baker and website designer who, due to their religious beliefs, did not want to provide services for gay couples.
The First Amendment’s other religion provision, called the Establishment Clause, restricts the government from establishing or endorsing any particular religion, or promoting religion over nonreligion. It is the constitutional underpinning of church-state separation, but is not directly implicated in Tuesday’s case.
‘FREE TO TEACH’
Colorado children in 2023 became eligible under state law for 15 hours per week of publicly funded preschool before entering kindergarten.
“Under this program, faith-based preschools remain free to teach their religious beliefs, including their beliefs about sex or gender or marriage, free to teach them while receiving public funding,” Norton said.
The Catholic Church recognizes marriage as a union only between a man and a woman, not same-sex couples, and opposes transgender self-identification. The Catholic Church’s catechism, a compendium of its teachings, also states that “homosexual acts are intrinsically disordered” and that “under no circumstances can they be approved.”
Reaves said the Catholic preschools “exist to pass on the faith to the next generation.”
“To do this, they ask all families who enroll to be open to and supportive of the Church’s teachings,” Reaves told the justices. “Because of this sincere religious exercise, the state has denied Colorado families the ability to use universal preschool funding at Catholic schools.”
Colorado’s argument cited a 1990 Supreme Court precedent in a case called Employment Division v. Smith that upheld “generally applicable” laws even if they curb religious freedom. That ruling has long been in the crosshairs of conservative litigants.
A ruling is expected by the end of June.
(Reporting by John Kruzel; Additional reporting by Andrew Chung Editing by Will Dunham)
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