Colorado goes to court, again

It’s almost like the state of Colorado enjoys losing at the U.S. Supreme Court. The Mile High State has an exceptionally poor track record at the high court of late. Just last month, Colorado lost 8 to 1 on an appeal concerning its conversion therapy ban, which prohibited licensed Christian mental health professionals from expressing a certain set of views regarding homosexual inclinations while counseling their clients (Chiles v. Salazar, March 31). In 2023, the Court ruled against Colorado in 303 Creative v. Elenis, challenging another speech regulation on Christian professionals—this time concerning wedding website designer Lorie Smith, who objected to making sites for same-sex nuptials. Five years before that, Colorado lost 7-2 on whether its misnamed Civil Rights Commission had properly persecuted, I mean, prosecuted Jack Phillips, owner of Masterpiece Cakeshop, who declined to make cakes for same-sex weddings.

Having gone 0 and 3 since 2018, Colorado finds itself once again before the Court, this time on whether a supposed nondiscrimination provision to its pre-K program is in reality a discrimination provision against orthodox Christians.

Colorado offers a free “4K” or pre-kindergarten program: “All children in Colorado can register for up to one year, of 15 hours [per week] of tuition-free, high-quality preschool in their year before kindergarten.” Whereas public schools all begin with traditional kindergarten at year five, pre-K is generally provided by a wide range of private schools, public schools, and day-care operations. The “free” pre-K operates as a taxpayer-funded scholarship for all Colorado children to attend the qualifying pre-K program of their choice.

But that choice is limited by Colorado’s statute, which limits qualifying programs to those that meet its requirements, such as the teacher-to-student ratio or teacher credentials. Another provision of the law, according to a U.S. government brief, “requires participating preschools to provide an ‘equal opportunity’ for children to enroll ‘regardless of’ the child’s or parents’ ‘race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability.’”

The Roman Catholic Archdiocese of Denver operates a large school system, including a number of parishes that offer pre-K programs. The programs would qualify for the state’s scholarship, but the fact that they hold orthodox views on sexuality creates a tension between school and state. As part of the schools’ admissions policies for children, the schools “consider families’ sexual orientation and gender identity when deciding whether to admit their children.” That is not to say that children of same-sex couples or transgender parents are automatically denied—rather, the schools go through a discernment process to determine whether the family will be a fit with the school community given the school’s commitment to teaching and preaching the parish’s orthodox view of sexuality. When the archdiocese sought an exemption from the state’s “nondiscrimination” rule as to sexual orientation and gender identity, the state denied the request, which prompts the case.

The appeal rises to the Court’s docket at a time of great promise for the First Amendment and its free exercise clause. Back in 1990, in a case called Employment Division v. Smith, the Supreme Court greatly restricted the impact of the free exercise clause, limiting it to situations where the state’s law specifically targeted religion (in legal parlance, where the state’s law was not neutral and generally applicable). Many laws that incidentally burden religious exercise—in that case, a state drug policy that affected a Native American adherent’s religious use of peyote—were thus constitutional. As a result, for the past three decades most religious liberty wins have actually come under the First Amendment’s free speech clause.

Many conservative scholars have called for the Court to overturn Smith, but Justices Brett Kavanaugh and Amy Barrett have pushed a third way around the Smith morass by defining “neutral and generally applicable” to mean truly universally applicable. If a law treats some behavior or reason as special enough to warrant an exemption from an otherwise neutral law, then it must extend the same exemption to religion. This view has found some purchase with the Court, particularly in a COVID-19 case from California, Tandon v. Newsom. There, because the state allowed exemptions for some gatherings, hardware stores, and hair salons, then it had to also permit in-home Bible studies.

In this case, Colorado had “preferences” built into its law for certain sorts of students, like those from families that receive welfare benefits, or children with special needs. The Catholic schools argue that if Colorado grants “preferences” to some groups, then the law is no longer generally applicable, and it must grant equally preferential treatment to religious groups. The case tests that balance because the preference for certain students is not identical to the preference against certain schools. Given Colorado’s track record at the Supreme Court of late, and the justices’ overall preference for expanding religious liberty, Colorado may face yet another embarrassing loss—a loss for the state that would be a big win for religious freedom.