The Supreme Court agreed Monday to review a Colorado law requiring preschools that receive taxpayer money to enroll children of same-sex couples — setting up a major First Amendment showdown at the high court that pits religious rights against LGBTQ families.
At the same time, the court declined to hear another high-profile case involving a Massachusetts couple who said their school began treating their middle school child as gender-neutral against their will.
After years of allowing religious schools to receive state funding alongside secular schools in some settings, the 6-3 conservative court will decide what to do next when school leaders challenge anti-discrimination laws aimed at protecting gay and transgender students who conflict with their religious beliefs. An appeal from Catholic parishes will likely be heard in the fall and a decision could be made sometime next year.
Colorado enacted a ballot provision in 2020 that provides state funding for a universal preschool program, allowing public and private schools to participate. The state program includes a nondiscrimination provision that requires every school that receives public money to provide equal opportunity to enroll qualified children regardless of race, religious affiliation, sexual orientation, gender identity and other factors.
Two Catholic parishes in Colorado and a family whose children attend a Catholic school in one of them sued that the non-discrimination provision violated the Free Exercise Clause of the First Amendment, which protects Americans’ ability to practice their religious beliefs without government interference. The families and parishes are represented by the religious public interest firm Beckett.
“This Court promised in Obergefell that religious groups would be protected from dissent from secular conservatives about marriage and sexuality,” the Catholic parish told the Supreme Court, Obergefell v. Referring to the 2015 decision in Hodges that effectively legalized same-sex marriage. “The Free Exercise Clause cannot serve that important function—which this Court has described as “at the heart of our pluralistic society”—if it can be so easily ignored.”
On a broader level, the case appears poised for a 6-3 conservative court that has repeatedly sided with religious interests in other cases in recent years. In a series of judgments, the court made it clear that when the government opens educational funding programs to public and private schools, religious schools should not be barred from participating in such programs because they are religious.
Earlier this year, the Trump administration filed an uninvited brief with the Supreme Court supporting the disputes. In upholding the law, the Justice Department said it would “restrict religious practice in major parts of the country.”
But religious groups were asking for a ruling that could have far-reaching implications for the power of religious interests to challenge other laws beyond education. First, they asked the Supreme Court to overturn a 36-year-old precedent that both Democrats and Republicans revile but the conservative court has so far been unwilling to knock down.
That precedent allows courts to uphold laws that affect religion as long as they apply generally — that is, they apply equally to religious and secular activities.
In a series of recent decisions, the Court has narrowed the definition of “generally applicable,” voiding “exceptions” to those laws. During the pandemic, and after conservative Justice Amy Coney Barrett replaced liberal Justice Ruth Bader Ginsburg, the court struck down crowd control rules that applied to churches but included exceptions for businesses like hardware stores.
In Colorado’s case, religious groups argued that the state law made too many important secular exceptions to the nondiscrimination prohibition. For example, the program allows schools to support low-income children or children with disabilities. Those exemptions, Beckett said, mean that the law is no longer generally applicable and therefore not protected by the 1990 precedent.
A federal district court and the 10th U.S. Circuit Court of Appeals expressly rejected that argument. Catholic groups appealed to the Supreme Court in November.
The court denied the parental rights case
Separately, the court declined to take up a parental rights case it had been considering behind closed doors for weeks.
Stephen Foote and Marissa Silvestri sued their suburban district after the middle school allowed their then 11-year-old child to use a new name and go to a boys’ bathroom, a girls’ bathroom, or a gender-neutral bathroom. The plaintiffs said that the incident happened without their knowledge.
The case directly dealt with the issue of parental rights which the courts had until recently ignored. In June, the court’s 6-3 conservative majority sided with a group of religious parents who wanted to opt out of their elementary school children being exposed to LGBTQ books in the classroom. The appeal from Foote and Silvestri deals with parents objecting to school actions based not on religious grounds protected under the Frist Amendment but on, in their words, “moral and scientific reasons.”
But the Supreme Court answered several questions in a recent emergency case involving California’s education policy barring teachers from informing parents about students’ gender expression. That policy was challenged by a group of teachers and religious parents who said it conflicted with their own beliefs about how to raise their children.
“We conclude that the parents seeking a religious exemption are likely to succeed on the merits of their Free Exercise Clause claims,” the court said in an unsigned order.
The court’s three liberals dissented.
A 2021 email to teachers and school officials in the merits case the court declined to hear involved a child identified as “BF,” BF identified as genderqueer and asked to be called by a new name and the school to use a range of pronouns that included both “he/she” and “he/she.” At home, according to court records, BF used the pronouns “he/she” and requested the school correspond with his parents.
BF wrote in the email, “I’m telling you this because I think I can trust you.” Here’s a list of pronouns you can use: she/her he/him they/them fae/faerae/aer ve/ver xe/xem ze/zir. I’ve added a link so you can see how you can tell them. Please use only what I have listed and not others. I don’t like it.”
Citing state guidelines and state laws banning discrimination based on gender identity, the school was forced to make the request. That guidance acknowledges the challenge school officials may face for transgender or gender nonconforming students: Those students aren’t always comfortable telling their parents “for reasons such as safety concerns or a lack of acceptance.”
Genderqueer is an identity that describes people whose gender expression falls outside traditional male-female binary categories.
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