The Supreme Court on Tuesday takes up a new clash between religious liberty and LGBTQ rights, this time over whether Colorado can require preschools that accept public money to enroll children of same-sex couples.
The case, brought by the Archdiocese of Denver, two Catholic parishes, and parents, challenges Colorado's universal preschool program. The program funds 15 hours of weekly preschool per child, but participating schools must agree to offer families an "equal opportunity" to enroll regardless of sexual orientation, gender identity, race, income, or disability.
Joe Davis, an attorney with the Becket Fund for Religious Liberty representing the challengers, said Colorado has given religious liberty "short shrift." He noted that the state has lost several recent Supreme Court battles over LGBTQ-related mandates.
Last term, the justices ruled 8-1 that Colorado's ban on "conversion therapy" violated a counselor's free speech rights. In 2023, the court sided with an evangelical Christian web designer who refused to create same-sex wedding websites. Earlier, the court narrowly backed a cake baker who objected to Colorado's anti-discrimination law.
"I don't think Colorado is going to have better luck than last time — or the last several times," Davis said.
The case is a key test of a 1990 Supreme Court precedent authored by the late Justice Antonin Scalia. That decision held that neutral and generally applicable laws are presumptively constitutional, even if they burden religious practices. But some conservative justices have criticized the ruling, with Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch explicitly calling for it to be overturned.
Colorado argues its preschool mandate fits within that precedent because it applies evenly to all schools and is not aimed at religion. Sharon McGowan, senior vice president of policy and litigation at the Human Rights Campaign, urged the court to follow precedent. "If the court honors precedent, which it should, there is a very clear doctrine," she said.
The Catholic parishes, however, hope the justices will narrow the 1990 ruling's scope, arguing it should not apply to public benefit programs like preschool funding. The Trump administration supports that view. Solicitor General D. John Sauer wrote that the law's "myriad exceptions belie any compelling state interest in uniform, even-handed admissions criteria," and that Colorado's failure to accommodate religious preschools "undermines, not promotes, its stated interest in 'equal access.'"
Colorado counters that adopting the challengers' position would create a "sweeping new rule." In its brief, the state said the court "need not, and should not, redesign Free Exercise doctrine to decide this case," because the mandate is an impartial condition on publicly funded services. McGowan framed it in terms of public resources: "Everyone is participating and putting money into that coffer, right? Gay people, straight people — everyone is putting into that money pot, and so the state, I think, appropriately, wants to make sure that when it is drawing money from that communal pot, it is able to benefit all of the people."
The case arrives amid broader legal battles over religious and LGBTQ rights, including disputes over gun regulations and abortion access. The outcome could set a significant precedent for how states balance antidiscrimination laws with religious exemptions in public programs.
