The US Supreme Court appeared poised to side with Catholic preschools challenging Colorado’s refusal to exempt them from a state non-discrimination rule, a decision that could allow them to join the publicly funded universal preschool programme.
The case concerns 34 Catholic preschools overseen by the Archdiocese of Denver. The schools do not currently participate because they declined to comply with a requirement that providers offer children an “equal opportunity” to enrol regardless of characteristics including race, religion, sexual orientation and gender identity.
Colorado rejected the archdiocese’s request for an exemption, saying participating schools could not “discriminate against children or families in violation of state statute”. The archdiocese, two parishes and a family then brought a legal challenge, arguing that excluding the schools breached the Constitution’s protection of the free exercise of religion.
US Supreme Court hears Catholic preschool challenge
During two hours of oral arguments, the court’s conservative majority repeatedly questioned whether the non-discrimination condition effectively excluded religious organisations with traditional Catholic beliefs about marriage, family and sexual identity.
Justice Amy Coney Barrett asked Colorado’s deputy solicitor general, Helen Norton, whether the state could directly exclude Catholic, evangelical or Orthodox Jewish schools from the programme. She then questioned how that differed from imposing a condition that such schools could not accept.
Justice Brett Kavanaugh said Colorado should pursue what he called a “win-win” approach. He noted that more than 2,000 preschools take part in the programme, compared with the 34 overseen by the Archdiocese of Denver, and said LGBT parents would still have many providers from which to choose.
Justice Samuel Alito referred to Colorado’s recent defeats before the Supreme Court in cases involving a Christian baker, website designer and counsellor, asking Norton what the court should make of the state’s record in other First Amendment disputes.
Norton said Colorado “welcomes” religious preschools into the programme and was asking only that all publicly funded providers meet the same conditions. Religious schools, she said, remained free to teach their views on sex, gender and marriage while receiving public money.
Nicholas Reaves, representing the Archdiocese of Denver, argued that Colorado was denying Catholic preschools access to public benefits because of their religious practice.
The court’s three liberal justices expressed concern that the schools were seeking a special exemption allowing them to refuse children or families on the basis of protected characteristics.
Justice Elena Kagan said a previous ruling on a Maine tuition-assistance scheme established that states could not treat religious institutions differently. “That’s not the principle that’s at issue here,” she said. “The principle at issue here is, do you have to treat them better?”
Justice Ketanji Brown Jackson said the archdiocese was seeking a “special rule” that would allow the schools to turn away pupils because of their own, or their parents’, sexual orientation or gender identity.
Colorado’s universal preschool programme was created after voters approved a 2020 ballot measure intended to make preschool widely available for free to four-year-olds. Families receive help with the cost of 15 hours a week, worth more than 6,000 dollars a year, while participating providers must sign a contract and meet state quality standards.
The mixed-delivery scheme includes public, private, faith-based and secular providers. Colorado estimates that about 40,000 children are eligible across nearly 2,000 preschools, while the Archdiocese of Denver’s 34 schools remain outside the programme.
