Supreme Court skeptical of Colorado's LGBTQ requirements on Catholic schools for tuition assistance

Supreme Court justices showed skepticism toward Colorado's preschool funding program that requires participants to accept students regardless of their or their parents' sexuality or gender identity, functionally excluding Catholic schools, at oral arguments Tuesday, according to media reports and legal observers.

Justice Amy Coney Barrett asked Colorado lawyer Helen Norton to explain the difference between explicitly excluding religious schools from tuition assistance, which the high court prohibited in the 2022 Maine precedent Carson, "and then choosing to impose a ​condition that you know that those schools will be unable to agree to?" Reuters reported.

"I think the effect of the law in Carson is pretty much the same as the effect of the law here," Chief Justice John Roberts told Norton, in that both turn on ‌"the substance of ⁠free exercise protections," Reuters said. The Colorado law provides 15 hours a week of publicly funded preschool, subject to schools providing "equal opportunity" for all children to enroll.

Religious liberty law firm Becket, representing the Archdiocese of Denver against the state, said several justices "appeared perplexed" by Colorado's conditions on Catholic schools to satisfy families who reject Catholic teaching on gender and sexuality. 

Justice Brett Kavanaugh asked if this was "a solution in search of a problem," and Justice Barrett asked "why are we here" given that no family had asked co-plaintiff St. Mary Catholic Parish to change its policies, according to Becket. Kavanaugh also emphasized Colorado "would allow a preschool to serve only vegetarians, but not allow a Jewish preschool to prefer Jewish families," in Becket's paraphrase.

"Colorado insists on creating culture-war clashes and losing at the Supreme Court," said Manhattan Institute Director of Constitutional Studies Ilya Shapiro, who supported the Catholic schools in a friend-of-the-court brief, paraphrasing Justice Samuel Alito's recognition that Colorado has lost three similar cases regarding religious liberty and antidiscrimination rules.

"When there are copious preschools available for families whose beliefs don't comport with Catholic teachings, why insist on cramming progressive orthodoxy down the throats of religious minorities?" Shapiro said.

Only the court's three liberal justices suggested Catholic schools were seeking a "special" accommodation to continue discriminating "against families based on protected characteristics," CBS News reported.