WASHINGTON, Nov 3 (Reuters) – The US Supreme Court on Tuesday considers a challenge by Catholic groups to a Colorado law barring anti-LGBT discrimination at publicly funded preschools, as conservative religious interests seek to extend their winning streak before the justices.
The court, whose 6-3 conservative majority has taken a broad view of religious liberty, will hear arguments over 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 is backing the Catholic groups.
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. Lower courts upheld the state program’s protections for LGBT people.
The case gives the Supreme Court another opportunity to expand a provision of the US Constitution’s First Amendment called the Free Exercise Clause, which protects the right to practice religion without government interference. The court’s liberal justices have criticized the conservative majority in recent cases for undermining the separation of church and state.
The First Amendment’s Establishment Clause — the constitutional underpinning of church-state separation — restricts the government from establishing or endorsing any particular religion, or promoting religion over nonreligion. It is not directly implicated in Tuesday’s case.
The Colorado case represents the latest collision between religious rights and LGBT protections at the court, where conservative religious interests in recent years have prevailed in a series of such disputes.
Colorado children in 2023 became eligible under state law for 15 hours per week of publicly funded preschool before entering kindergarten. Participating preschools may be public or private, secular or religious. But in each case, under the law, schools must give all children “equal opportunity” to enroll, regardless of the sexual orientation or gender identity of the students or parents.
The Archdiocese of Denver along with other Catholic entities and a Colorado family sued as the state’s universal preschool initiative was ramping up. They argued that the program’s anti-discrimination mandate burdened their religious exercise.
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.
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.”
The Catholic groups are represented by the Becket Fund for Religious Liberty, a conservative legal group whose website touts its “unparalleled, undefeated record” in 13 cases before the Supreme Court.
A core disagreement in the case is whether Colorado discriminated against the Catholic preschools by refusing to exempt them from the equal-opportunity requirement, while at the same time allowing preschools to prioritize the enrollment of low-income and disabled students.
Colorado has argued that its equal-opportunity requirements do not intrude on the Free Exercise Clause because they are neutral and apply generally to participating groups.
Colorado bases its argument on 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.
The Supreme Court, in agreeing to hear the Colorado case, formally declined to consider overruling the Smith precedent. But a group of constitutional scholars who back Colorado told the justices in a filing that embracing the broadest argument presented by the Catholic groups would gut the precedent.
The court’s thinking in the case may be guided by its recent decisions that expanded access by religious schools to public money in response to policies that, in the view of the justices, had unlawfully excluded religious institutions.
A ruling is expected by the end of June.
(Reporting by John Kruzel; Editing by Will Dunham)
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