The U.S. Supreme Court in recent years has made it easier for faith-based private schools to receive taxpayer funding, but how far it is willing to go in situations where religious practices clash with public policy remain to be seen. A case that could partially answer that question, St. Mary Catholic Parish v. Roy1, was argued before the court Tuesday — but the court’s 6-3 conservative majority, although widely expected to side with a Catholic preschool seeking a state subsidy under Colorado’s preschool-for-all program, did little to tip its hand on how it might rule.
But not so for the court’s three-justice minority, particularly Sonia Sotomayor, who vigorously pushed back against the arguments made by Nicholas Reaves, a lawyer from the Becket Fund for Religious Liberty. Reaves was representing the Archdiocese of Denver; St. Mary Catholic Parish of Littleton, Colo.; St. Bernadette Catholic Parish of Lakewood, Colo.; and two parents of preschool children.
The case involves a determination by the Colorado’s Universal Preschool Program, which provides a subsidy for private preschools, including religious ones, in an effort to make preschool available for those who cannot otherwise afford it. The program objected to plans by the preschools named in the lawsuit to refuse admission to children whose parents would not affirm a statement of “community beliefs” that include Catholic doctrine on homosexuality and marriage.
“It seems like you’re asking for a special rule” for religious schools rather than expecting them to be treated the same as secular ones, Sotomayor told Reaves. At one point, she suggested that the diocese is asking for taxpayer support in its effort to help parents keep their children away from the children of same-sex couples.
Sotomayor also suggested that the school’s policies are legally similar to those of a hypothetical preschool that would deny admission to children of black parents.
St. Mary Catholic Parish v. Roy in some ways pits two Supreme Court precedents against each other:
🟪 Employment Division v. Smith, a 1990 employment discrimination case in which the court ruled that the government can constitutionally pass laws negatively affecting people of particular religions if the laws have a secular purpose and apply to everyone regardless of religion.
🟪 Carson v. Makin, a 2022 case in which the court rejected a Maine school voucher program that subsidized private schools unless they were faith-based. The court said state programs cannot discriminate against private schools simply because they are religious in nature.
Helen Norton, the Colorado deputy solicitor general, arguing for the state, noted that the preschool program complies with Carson v. Makin and provides funding to a wide variety of religious preschools. In this case, the plaintiffs aren’t asking to be treated the same as other schools but are seeking a religious accommodation that goes beyond what Carson provided, she said.
A third lawyer presenting arguments was Sarah Harris representing the U.S. Department of Justice, who sided with the schools. Her presence represented the Donald Trump administration’s support for what it sees as religious freedom.
The high court will probably announce its decision in the case sometime next spring.
Lisa Roy is the executive director of the Colorado Department of Early Childhood.