Supreme Court Justice Brett Kavanaugh pressed Department of Justice (DOJ) lawyer Sarah Harris about whether certain religious exemptions may constitute “favor” during arguments in the case St. The case centers around the legal question of whether Colorado can exclude a Catholic preschool from a program granting public funding to preschools if it does not comply with nondiscrimination requirements regarding sexual orientation and gender identity. The conservative-leaning court has sided with religious groups against LGBTQ+ rights in recent cases, including a ruling against Colorado in a legal dispute over a conversion therapy ban.
The court's ruling on this case could have implications for LGBTQ+ nondiscrimination laws across the country. Newsweek reached out to lawyers for the petitioners and respondents for comment via email. The case involves Catholic preschools and families arguing it is unconstitutional for Colorado to prohibit them from the taxpayer-funded free preschool program because of their admission policies on LGBTQ+ families and children.
The program provides families with more than $6,000 to send their children to preschool. The case was brought by Dan and Lisa Sheley, Catholic parents who have sent their children to school in St. Mary’s Catholic Parish and believe the program should provide their funds to attend that school.
They wrote in a statement back in April, when the court agreed to hear the case, that the program has “cut out families like ours because we chose a Catholic education.” Colorado has said it allows religious schools to participate in the program, but that they must follow nondiscrimination laws. In their petition to the Supreme Court, petitioners argued the state law requires schools to ensure families have an “equal opportunity” to enroll but has granted numerous exceptions. Attorney General Phil Weiser’s office wrote in a filing the universal preschool program “affirmatively welcomes faith-based providers while allowing no exceptions from its equal-opportunity requirements.” “Because this case involves neither any exceptions nor the discretion to create exceptions, it is not an appropriate vehicle for addressing the question of what sorts of exceptions would render the government’s action not generally applicable,” he wrote.
The court has been asked to address two questions in the case—whether “proving a lack of general applicability under Employment Division v. Smith requires showing unfettered discretion or categorical exemptions for identical secular conduct,” and whether Carson v. Makin “displaces the rule of Employment Division v.
Smith only when the government explicitly excludes religious people and institutions.” In Smith, the court ruled that governments can enforce laws even if they incidentally burden religious practices. Makin, the justices held that Maine cannot exclude religious schools from a tuition-assistance program because they are religious. Nicholas Reaves, senior counsel at the Becket Fund for Religious Liberty, argued on behalf of the petitioners.
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