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The Supreme Court agreed Monday to review a Colorado law that requires preschools receiving taxpayer money to enroll children of same-sex couples — setting up an important First Amendment showdown at the high court that pits religious rights against LGBTQ families.After years of allowing religious schools in some settings to receive state funding alongside secular schools, the 6-3 conservative court will now decide what to do when school leaders assert that anti-discrimination laws intended to protect gay and transgender people conflict with their religious beliefs.Colorado enacted a ballot provision in 2020 that provides state funding for a universal preschool program, allowing both public and private schools to take part. The state program includes a nondiscrimination provision that requires each school receiving public money to provide eligible children an equal opportunity to enroll, regardless of race, religious affiliation, sexual orientation, gender identity and other factors.Two Catholic parishes in Colorado and a family whose children have attended Catholic school in one of those parishes sued, claiming that the nondiscrimination provision violated the First Amendment’s free exercise clause, which protects Americans’ ability to practice their religious beliefs without government interference. The family and the parishes are represented by the religious public interest firm Becket.“This court promised in Obergefell that religious groups would be protected when they dissent from secular orthodoxies about marriage and sexuality,” the Catholic parishes told the Supreme Court, referencing the 2015 decision in Obergefell v. Hodges that effectively legalized same-sex marriage. “The free exercise clause simply cannot do that important work – which this court has described as ‘at the heart of our pluralistic society’ — if it can be so easily evaded.”At a broad level, the case appears ready-made for a 6-3 conservative court that has repeatedly sided with religious interests in other cases in recent years. In one series of decisions, the court has made clear that when the government opens educational funding programs up to public and private schools, it cannot bar religious schools from taking part in those programs just because they are religious.Earlier this year, the Trump administration submitted an uninvited brief in the Supreme Court supporting the dioceses. Upholding the law, the Justice Department said could “stymie religious exercise in major portions of the country.”But the religious groups were asking for a decision that could also have sweeping implications for the power of religious interest to challenge other laws beyond education. To begin with, they asked the Supreme Court to overturn a 36-year-old precedent that has been maligned by both Democrats and Republicans but that even the conservative court has, so far, been unwilling to nix.That precedent allows courts to uphold laws that affect religion as long as they are generally applicable — that is, they apply equally to religious and secular activity.In a series of more recent decisions, the court has narrowed the definition of “generally applicable,” zeroing in on “exceptions” to those laws. During the pandemic, and after conservative Justice Amy Coney Barrett replaced liberal Justice Ruth Bader Ginsburg, the court shut down crowd control regulations that applied to churches but included exceptions for businesses like hardware stores.In the Colorado case, the religious groups argued that the state law carved out several important secular exceptions to the nondiscrimination prohibition. For instance, the program allows schools to favor low-income children or children with disabilities. Those exemptions, Becket said, meant that the law was no longer generally applicable and therefore not protected by the 1990 precedent.A federal district court and the 10th U.S. Circuit Court of Appeals flatly rejected that argument. The Catholic groups appealed to the Supreme Court in November.
The Supreme Court agreed Monday to review a Colorado law that requires preschools receiving taxpayer money to enroll children of same-sex couples — setting up an important First Amendment showdown at the high court that pits religious rights against LGBTQ families.
After years of allowing religious schools in some settings to receive state funding alongside secular schools, the 6-3 conservative court will now decide what to do when school leaders assert that anti-discrimination laws intended to protect gay and transgender people conflict with their religious beliefs.
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Colorado enacted a ballot provision in 2020 that provides state funding for a universal preschool program, allowing both public and private schools to take part. The state program includes a nondiscrimination provision that requires each school receiving public money to provide eligible children an equal opportunity to enroll, regardless of race, religious affiliation, sexual orientation, gender identity and other factors.
Two Catholic parishes in Colorado and a family whose children have attended Catholic school in one of those parishes sued, claiming that the nondiscrimination provision violated the First Amendment’s free exercise clause, which protects Americans’ ability to practice their religious beliefs without government interference. The family and the parishes are represented by the religious public interest firm Becket.
“This court promised in Obergefell that religious groups would be protected when they dissent from secular orthodoxies about marriage and sexuality,” the Catholic parishes told the Supreme Court, referencing the 2015 decision in Obergefell v. Hodges that effectively legalized same-sex marriage. “The free exercise clause simply cannot do that important work – which this court has described as ‘at the heart of our pluralistic society’ — if it can be so easily evaded.”
At a broad level, the case appears ready-made for a 6-3 conservative court that has repeatedly sided with religious interests in other cases in recent years. In one series of decisions, the court has made clear that when the government opens educational funding programs up to public and private schools, it cannot bar religious schools from taking part in those programs just because they are religious.
Earlier this year, the Trump administration submitted an uninvited brief in the Supreme Court supporting the dioceses. Upholding the law, the Justice Department said could “stymie religious exercise in major portions of the country.”
But the religious groups were asking for a decision that could also have sweeping implications for the power of religious interest to challenge other laws beyond education. To begin with, they asked the Supreme Court to overturn a 36-year-old precedent that has been maligned by both Democrats and Republicans but that even the conservative court has, so far, been unwilling to nix.
That precedent allows courts to uphold laws that affect religion as long as they are generally applicable — that is, they apply equally to religious and secular activity.
In a series of more recent decisions, the court has narrowed the definition of “generally applicable,” zeroing in on “exceptions” to those laws. During the pandemic, and after conservative Justice Amy Coney Barrett replaced liberal Justice Ruth Bader Ginsburg, the court shut down crowd control regulations that applied to churches but included exceptions for businesses like hardware stores.
In the Colorado case, the religious groups argued that the state law carved out several important secular exceptions to the nondiscrimination prohibition. For instance, the program allows schools to favor low-income children or children with disabilities. Those exemptions, Becket said, meant that the law was no longer generally applicable and therefore not protected by the 1990 precedent.
A federal district court and the 10th U.S. Circuit Court of Appeals flatly rejected that argument. The Catholic groups appealed to the Supreme Court in November.
