Roberts was the lone conservative skeptic as Gorsuch and Barrett questioned Colorado
At Tuesday’s Supreme Court argument, Colorado Deputy Solicitor General Helen Norton pointed to the case of a rejected student and disputed assertions that the schools were easily interchangeable. “Think of the parent who needs a school that opens at 7 a.m. so she can get the bus that takes her to work. Think of the parent who needs a school that will take all three of her kids, so she doesn’t have to shuttle them among three different schools,” she said.
Chief Justice John Roberts was the only conservative justice to express any skepticism about the Denver Archdiocese’s request. All six of the court’s conservative justices were raised Catholic, as was Justice Sotomayor. The Denver Archdiocese — though not all other religious providers in Colorado — wants an exemption from the state’s nondiscrimination law so it can obtain state funding while barring children of gay and trans parents from its program. The archdiocese maintains that compliance violates the Constitution’s guarantee of free exercise of religion.
The conservative majority seemed likely to grant that request and rule that four-year-old children of gay and trans parents can be barred from the state-funded pre-K program. Justice Neil Gorsuch suggested Colorado was deliberately defying an earlier series of decisions, asking whether “we were just wasting our time for the last ten years on those cases.” Justice Amy Coney Barrett questioned the state’s good faith, saying, “It’s hard to imagine that Colorado couldn’t have seen this coming.”
Justice Brett Kavanaugh agreed with the conservative challenge, calling Colorado’s law a provocation. He asked, “Why not seek the win-win,” and said, “There are 2,000 schools. There are only 34 Catholic schools. There are plenty of opportunities to respect the rights of the religious believers and respect the ability of LGBT parents to find among the 2,000 schools [an] appropriate fit for their children.” Justice Samuel Alito contended, “we have little evidence of a practical problem. Little evidence, if any evidence…that there are LGBTQ couples who cannot find other preschools to send their children to.”
The court’s three liberal justices signaled strong disagreement with the conservatives. Justice Ketanji Brown Jackson put her view this way: “There’s no principled basis, I think, to distinguish between an entity that says, ‘My religious faith says my children can’t go to school with the children of gay people,’ from a religious entity that says, ‘my religion says my children can’t go to school with the children of Black people.’”
Justice Elena Kagan said, “Even though religious people are being treated the same way on the face of the statute, that’s not enough. They need a special accommodation. They need to be treated differently from other people.” Justice Sotomayor directly challenged Nicholas R. Reaves, the archdiocese’s lawyer: “Bottom line is your school can reject a child because their parents are homosexual,” she told him.
Colorado adopted a statewide program in 2022 to provide all four-year-olds with an early education. Taxpayers paid $6,300 per child per year. The program was open to all, including religious groups. Its only caveat was that preschool programs had to comply with state law barring discrimination based on race, religion, ethnicity or other categories. The Catholic Church initially supported the program, and the nonprofit Catholic Charities still participates in it.
The case remained undecided after Tuesday’s argument. A decision is expected by summer 2027.