The Supreme Court appeared poised Tuesday to rule that Colorado cannot require schools receiving state preschool funding to treat LGBTQ families the same as other families, based on oral arguments in St. Mary Catholic Parish v. Roy.
At least five Republican justices seemed hostile to Colorado's nondiscrimination requirement. Chief Justice John Roberts initially asked questions suggesting he might uphold the state's policy, but by the end of argument appeared to align with his Republican colleagues. Justice Amy Coney Barrett was the only Republican to ask questions hinting at a narrower ruling, though still favoring the religious schools.
Colorado's program provides state-funded preschool to all children and allows families to choose their school. Private religious schools may participate but cannot discriminate based on sexual orientation or gender identity if they accept state funding. The Catholic schools suing claim they should receive taxpayer money while excluding children of same-sex couples.
The three Democratic justices raised concerns about the sweeping implications. Justice Sonia Sotomayor asked why religious schools couldn't then discriminate against Black students if they discriminate against LGBTQ families. Justice Ketanji Brown Jackson posed a hypothetical school teaching only boys mathematics. Justice Elena Kagan questioned whether public schools would face similar pressures to accommodate anti-LGBTQ religious beliefs from parents.
The Republican justices largely suggested religious objectors may demand exemptions from nearly any law, with many indicating that strict scrutiny, the most demanding standard of constitutional review, should apply. Barrett appeared open to distinguishing between absolute exclusion and requiring same-sex parents to sign statements denouncing homosexuality and restricting their public conduct.