A Supreme Court that in recent years has ruled again and again in favor of faith groups is expected to be sympathetic to the Roman Catholic Church in the next big religious liberty case the justices will consider.
The court on Nov. 3 is debating whether Catholic preschools in Colorado must accept children of gay parents if taxpayers are funding the school.
The case pits religious freedoms against nondiscrimination rules about sexual orientation, and Justice Samuel Alito's approach to similar cases could offer a guide as to why the 6-3 conservative court might be inclined to side with the religious preschools.
In his recent book, Alito − who is perhaps the court's biggest proponent of religious liberty − suggests these nondiscrimination rules are more about forcing beliefs on others than protecting vulnerable groups.
People are also reading…
On Tuesday the Supreme Court is set to debate whether Catholic preschools in Colorado must accept children of gay parents if taxpayers are funding the school.
'The new moral code'
In the court’s 2018 ruling siding with a Colorado baker who refused to create a custom wedding cake for a same-sex couple, Alito wrote that there was no reason to think the baker’s stance would deprive anyone of a cake.
“The couple that came to his shop was given a free cake by another bakery, and celebrity chefs jumped to the couple’s defense,” Alito wrote. “What we see in these and other cases is a refusal to live in peace with those who violate the new moral code.”
He said the situation was similar in 2021 when the court ruled a Catholic foster care agency in Philadelphia may turn away gay and lesbian couples as clients.
No same-sex couple had tried to use the foster care agency and, if they had, the agency would have referred them to another service that would have been happy to help, Alito said.
“But that did not satisfy the city,” he wrote. “The very existence of an organization that expressed disapproval of same-sex marriage was unacceptable.”
Anti-discrimination laws v. religious rights
Veteran Supreme Court litigator Roman Martinez, a former clerk to Chief Justice John Roberts, said what appears to be driving the court in these cases is “a commitment to a type of pluralism.”
“The court, I think, is very concerned about religious groups having equal access and being treated equally as a matter of practice, not just as a matter of formalism,” he said. “And I think there’s a sense across a number of these cases that what some states are doing, even if they’re with well-intentioned motives through their anti-discrimination law, is essentially trying to pressure and force conformity on those individuals or groups that have a view that is a more traditional view but is not in line with more progressive views, especially on things like LGBT rights.”
Martinez made those comments during a public discussion of the upcoming case at Georgetown Law’s Supreme Court Institute.
In response, Don Verrilli, a former solicitor general under President Barack Obama, said the court could be promoting “one kind of pluralism, maybe at the expense of another.”
He asked whether the arguments would change if the cases were about racial discrimination.
“Would we think about it the same way? Maybe with this court the answer is 'yes,’” he said. “But maybe not.”
Religion 'long been used' to justify discrimination
In a filing supporting Colorado’s nondiscrimination policy for preschools that accept public funds, the NAACP Legal Defense and Educational Fund recounted the past use of religion to support segregation and to oppose interracial marriages.
“Religion has long been used as a purported justification for invidious discrimination of all types, including racial discrimination,” the group wrote. “But this Court has repeatedly recognized that the government can restrict unlawful discrimination even if that discrimination comes cloaked in religious garb.”
In a controversial 1990 decision, the Supreme Court said that governments may impose restrictions that affect a religious entity if the rules apply to everyone – religious and secular groups alike – and don’t target a religion.
Religious freedom advocates have been pushing the court to overturn that decision. While the justices have not done that – and specifically declined to consider doing so when they agreed to hear the Colorado preschool case – the court could continue its recent trend of limiting the reach of Employment Division v. Smith.
In the foster care decision, for example, the Court said a law is not generally applicable when it allows some exceptions but not others. Because Philadelphia allowed city officials to make exceptions for its nondiscrimination policy, the court said the policy could not be enforced against the Catholic foster care agency.
Getting the Supreme Court's message
The head of the Becket Fund for Religious Liberty, which is representing the Catholic Church in the preschool case, said not everyone has gotten the message the justices have been sending – including through the court's 2022 decision that Maine can’t exclude religious schools from its tuition assistance program.
“Some governments and courts have a very resistance mentality to the Supreme Court these days,” said Mark Rienzi, the group’s president and CEO. “They will not go along until you drag them specifically, kicking and screaming.”
Even though the state’s nondiscrimination policy appears neutral, it’s still targeting religions that don’t share the state’s view on gay and transgender issues, the Church argues.
Colorado said it encourages religious schools to participate in the preschool program, which was created to provide free, early education throughout the state.
More than 40 faith-based providers − including six Catholic Charities preschools – joined the program when it began in 2023, according to the state.
Schools can teach religious views but not exclude students
Schools are free to teach religious views on sex, marriage and gender, the state’s lawyers told the Supreme Court in a filing. But they must give all children an “equal opportunity” to enroll, regardless of religious affiliation, sexual orientation, gender identity and other factors, including race and income level.
The nondiscrimination rules for LGBTQ+ families are important in part because a preschool run by a religious group may be the only feasible option, especially for those living in rural communities, the state said.
But the Church told the Supreme Court that no LGBTQ+ family has sought admission to a Catholic preschool that requires families to support the Church’s teachings on sex and marriage. (The preschools run by Catholic Charities that have participated in the public program have a “distinct ministry” of providing for the poor and – unlike the parish schools that sued − do not require families to make the same commitment to support Catholic teaching.)
That’s likely to influence how the justices will view the competing interests in the case, according to Irv Gornstein, executive director of Georgetown Law’s Supreme Court Institute.
On one side are Catholic parents who want to send their children to tuition-free Catholic preschools. On the other side are gay and transgender parents who are likely to prefer a non-Catholic preschool, he said.
“Do they really want to go to Catholic schools where they’re taught that it’s a sin to have a sex-same marriage?” Gornstein asked.
Framing the dispute that way, he said, will make the case an easy one to resolve for a court that’s championed religious freedom.
