Over the last ten years, Colorado has compiled an impressive losing streak before the Supreme Court in religious liberty and free speech cases. Based on Tuesday’s oral argument in St. Mary Catholic Parish v. Roy, the state looks poised to lose another one.
The case arose from one of Governor Jared Polis’s signature initiatives: a universal preschool program. Created in 2022, the program funds up to 15 hours a week of preschool per child at participating schools, including private ones. To qualify, schools must agree to provide eligible children an equal opportunity to enroll and receive preschool services regardless of characteristics including religious affiliation, sexual orientation, and gender identity. The program excludes schools that do not agree to those provisions. Colorado says the requirement protects LGBTQ children and families.
The Archdiocese of Denver, two Catholic parishes, and two parents of preschool-aged children who were shut out from the program sued the state, contending that the policy unconstitutionally excludes them from participation because of their religious beliefs and practices. A Tenth Circuit panel of one Obama and two Biden appointees ruled for the state, concluding that Colorado welcomed religious schools as long as they complied with the same nondiscrimination requirements as other providers. In the plaintiffs’ view, the state was using a principle of nondiscrimination to exclude schools because they would not abandon their religious commitments.
At oral argument, the conservative justices seemed unpersuaded by the Tenth Circuit’s reasoning. Justice Kavanaugh questioned why the conflict was even necessary. To him it seemed that there was an easy “win/win” available for Colorado where it could provide universal pre–K and protect religious liberty. The state has over 2,000 pre-schools, of which only 34 are Catholic. He suggested there was room to respect the rights of religious schools and allow LGBTQ parents to find an appropriate school for their children. The state’s approach, he said, seemed like “a would-be solution in search of a problem” creating an unnecessary clash. “I’m just trying to figure out,” he asked, “why we’re here. . . why has this been provoked when there’s an ability for everyone to go to the school, a good school that’s a fit for them and respect religious rights?”
Colorado Deputy Solicitor General Helen Norton responded that preschools are not interchangeable. A family might need a school that opens early enough for a parent to get to work, accommodates siblings, or is close enough for a neighbor to help with pickup. Colorado, she said, sought to ensure “equal opportunity, not some opportunity” to attend publicly funded schools. Kavanaugh pointed out, though, that Colorado allowed schools to give priority to students whose parents would be more involved. “That,” he noted, “almost inherently discriminates against single-parent families.”
Justice Barrett asked whether there was any record of same-sex parents trying to send their children to the Catholic preschools and being turned away. Norton pointed to an example involving a 5th grader at St. Bernadette, a school with a preschool. “Well, a 5th-grader is not pre–K, right?” Barrett replied. On rebuttal, the schools’ lawyer, Nicholas Reaves, noted that the family and the school had mutually concluded the school was not the right fit.
