Catholic preschools pit religion against LGBTQ rights in Supreme Court fight over public funds

WASHINGTON (CN) — The fight over public funding for religious schools returns to the Supreme Court on Tuesday as the justices review Colorado’s universal preschool program.The Centennial State offers every 4-year-old Coloradan up to 15 hours of free schooling each week — worth over $6,000 per year. In exchange, participating schools must meet certain quality standards and be open to all students.Colorado’s mandate for inclusivity will be probed by the justices for being exclusionary to two Catholic preschools that won’t open their doors to LGBTQ families. St. Mary Catholic Parish in Littleton and St. Bernadette Catholic Parish in Lakewood want the Supreme Court to add their case to a growing list of rulings opening up taxpayer dollars to religious schools.Suzanne Goldberg, a law professor at Columbia Law School, said their case also follows a recent trend of litigation asking whether anti-discrimination protections must give way to religious viewpoints.“This case raises an important question: whether a state can require schools not to discriminate against students and their parents when the state provides them with specialized funding,” Goldberg said.BuildupSince 2017, the Roberts court has been reshaping First Amendment jurisprudence around the free exercise clause, which protects the rights to practice any religious belief. In Trinity Lutheran v. Comer, the court held that churches couldn’t be excluded from secular aid programs. Then in Espinoza v. Montana Department of Revenue in 2020, the justices ruled states couldn’t refuse government aid to schools controlled by churches.Those two rulings culminated in the Supreme Court’s landmark 2022 ruling in Carson v. Makin, holding that state funded school choice programs must include education at religious institutions.The Catholic preschools say their case falls neatly under Carson’s holding that the free exercise clause prohibits available public benefits being denied based on a recipient’s religious exercise. St. Mary’s and St. Bernadette’s claim they are being excluded because of their religious practices of ensuring all enrolling families are supportive of the Catholic Church’s teaching on sex and marriage.“Colorado has made it free to attend over 2,000 preschools in the state,” the schools wrote. “But it has barred Archdiocesan schools from participating, thus imposing what equates to a substantial new tax on parents who desire to form their preschool-aged children in the Catholic faith.”The preschools filed a lawsuit in 2023 after being denied a religious exemption from the equal opportunity mandate. But two lower courts ruled against them, finding Carson only applies where government exclusions are on the explicit basis of religion.Cousins not twinsThe Colorado Department of Early Childhood says St. Mary’s and St. Bernadette’s aren’t being excluded from the program, but instead held to the same rules that apply to all publicly funded preschools — public and private, secular and religious.Under Colorado law, the department said all preschools must meet neutral, generally applicable quality standards, and they are required to provide eligible children an equal opportunity to enroll and receive services.The department argued that applying Carson here would transform the court’s ruling into a requirement that public benefit conditions be scrutinized whenever they incidentally burden religiously motivated conduct.Instead, the department pushed the high court to review the case under Employment Division v. Smith. The 1990 ruling held that an individual’s religious beliefs did not excuse him from complying with an otherwise valid law prohibiting conduct that the government is free to regulate.St. Mary’s and St. Bernadette’s argue the department must make accommodations for their religious beliefs because it has approved other exceptions, such as giving preference to low-income families who fall into specific income brackets or enrolling children who have certain disabilities.The Colorado Department of Early Childhood pushed back on this assessment, saying the schools had misinterpreted the state’s law, which expressly authorizes public school districts and Head Start preschools to provide specialized services to children with disabilities and children living in poverty.License to discriminate?Outside of the schoolyard, the Roberts court has limited the breadth of anti-discrimination laws at the behest of religious rights in recent years as well.In 2023’s 303 Creative v. Elenis, the conservative majority sided with a Christian wedding website designer, also from Colorado, who didn’t want to offer services to same-sex couples. And in 2025’s Mahmoud v. Taylor, the justices ruled in favor of religious parents seeking mandatory opt-outs to shelter children from LGBTQ-inclusive storybooks.Supporters of the two Catholic preschools claim anti-discrimination requirements would be used to covertly exclude disfavored religious groups. West Virginia and 20 other states labeled such rules as “weapons” aimed to “take out religious groups that hold unpopular beliefs, especially on marriage or sexuality.”The states attacked protections against sexual discrimination as creating the “perfect cover” for governments hostile to religion.“As America experiences a ‘shift [in] cultural views about antidiscrimination norms,’ the ‘growing strength’ of those norms could continue to put ‘increased pressure on the free exercise right,’” the states wrote. “This court should shut that backdoor gateway to religious discrimination.”But a group of historians say the opposite is true and has been throughout history. They argue anti-discrimination laws protect religious liberty by ensuring that children from minority religions have access to publicly funded schools.“American governments have attached terms to publicly funded schooling since the first generation of public schools, and religious institutions — Catholic institutions above all — have not merely tolerated those terms but invoked them,” the historians wrote.The historians said there is a distinction between conditions on public participation and exclusions from public participation backed up by American history.“Colorado’s program admits religious providers and asks of them what it asks of everyone else,” the historians wrote. “That is not a modern evasion of this court’s precedents. It is the arrangement under which religious education has sought and received public support for two centuries.”Taking a step backFar from a new phenomenon, the NAACP Legal Defense and Education Fund says using religion as a justification for discrimination traces back to the decades before Brown v. Board of Education to support segregated schools. And even after Brown, the group says judges and state officials openly relied on religion to resist integration.“The religious justifications for discrimination originally espoused by private schools focused on racial exclusion,” the NAACP wrote. “Over time, however, they have encompassed exclusion on other grounds like sexual orientation and gender identity.”The NAACP notes children excluded from St. Mary’s and St. Bernadette’s would likely be denied access not because of their gender identity or sexual orientation but because of their parents.“Petitioners propose to impose these harms on a particularly vulnerable group of children — 3- and 4-year-olds in formative stages of their development who are experiencing ‘school’ for the very first time,” the group wrote.Goldberg said it was worth questioning why any school would want to exclude students based on who their parents are.“What we are talking about in preschool is children learning to get along with their peers and to follow directions and to gain some independence and to begin to develop basic learning skills to prepare them for school,” Goldberg said. “So it is unclear why government funds should be used to support the exclusion of certain students because of themselves or their parents when that exclusion is on protected grounds.”The Supreme Court will hear arguments on Nov. 3.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads