The Supreme Court will wade back into church-state matters, announcing Monday it will hear a case out of Colorado over whether its program that pays for kids to attend public or private preschools can block a devoutly Catholic school from participating.
Colorado’s universal preschool law requires schools to give all applicants an equal opportunity to attend, regardless of race, religion, sexual orientation and gender identity. But the Archdiocese of Denver asks schools not to admit children from families who don’t support the Catholic church’s teachings on sex and gender.
“Colorado’s exclusion of Catholic preschools reduces access, pushing parents and children toward preschools that share the government’s views on these issues and penalizing the religious schools and families who disagree,” the archdiocese and two of its parishes said in their petition asking the justices to hear the case.
The high court in recent years has chipped away at restrictions on government funding flowing to religious institutions, finding that many of the laws single out religions for special treatment.
Colorado argued that its law doesn’t discriminate specifically against religious institutions or Catholics in particular. It said its policy is neutral, applying to any school that discriminates on the basis of sex or gender identity.
The 10th U.S. Circuit Court of Appeals agreed. It said Colorado’s law, far from discouraging religious schools’ participation, actively welcomes it. The non-discrimination principles apply to every school in the system, the appeals court said.
“Colorado is not attempting to prohibit funds from being used for religious purposes,” wrote 10th Circuit Judge Richard Federico, a Biden appointee. “The restrictions imposed by the nondiscrimination requirement universally cover enrollment policies and conduct, but they are not a targeted burden on religious use.”
The circuit court cited the Supreme Court’s precedent in Employment Division v. Smith, a 1990 case that found the First Amendment can’t be used as a shield against otherwise unlawful activity.
That decision has become the backbone of arguments that laws, even if they do burden a religious group, are valid as long as they are generally and neutrally applied.
It took four justices to vote in favor of taking up the dispute, which will likely be heard when the court convenes its new term in the fall.
The justices signaled they will not be deciding whether to overturn the Smith case but will look at the factors that go into deciding when a law is generally and neutrally applied and when it crosses the line into discrimination against a religion.
Colorado voters adopted the universal preschool plan in 2020. Families list their choices of schools, and the state matches them with an option.
The Catholic institutions say the state does allow some exemptions from its non-discrimination language, including prioritizing “gender-nonconforming children” or “children of color from historically underserved areas.”
That, the Catholic institutions argues, undercut the state’s claim that its rules are neutral.
The case is St. Mary Catholic Parish v Lisa Roy. St. Mary is one of the parish schools seeking to participate in the preschool program. Ms. Roy is the executive director of Colorado’s Department of Early Childhood.
