Supreme Court will decide if preschools that decline children of same-sex couples may receive state funding

By John Fritze, CNN

(CNN) — The Supreme Court agreed Monday to review a Colorado law that requires preschools receiving taxpayer money to enroll children of same-sex couples — setting up an important 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 genderqueer against their wishes.

After years of allowing religious schools in some settings to receive state funding alongside secular schools, the 6-3 conservative court will now decide what to do when school leaders assert that anti-discrimination laws intended to protect gay and transgender people conflict with their religious beliefs. The appeal from the Catholic parishes will likely be heard in the fall and a decision is likely sometime next year.

Colorado enacted a ballot provision in 2020 that provides state funding for a universal preschool program, allowing both public and private schools to take part. The state program includes a nondiscrimination provision that requires each school receiving public money to provide eligible children an equal opportunity to enroll, regardless of race, religious affiliation, sexual orientation, gender identity and other factors.

Two Catholic parishes in Colorado and a family whose children have attended Catholic school in one of those parishes sued, claiming that the nondiscrimination provision violated the First Amendment’s free exercise clause, which protects Americans’ ability to practice their religious beliefs without government interference. The family and the parishes are represented by the religious public interest firm Becket.

“This court promised in Obergefell that religious groups would be protected when they dissent from secular orthodoxies about marriage and sexuality,” the Catholic parishes told the Supreme Court, referencing the 2015 decision in Obergefell v. Hodges that effectively legalized same-sex marriage. “The free exercise clause simply cannot do that important work – which this court has described as ‘at the heart of our pluralistic society’ — if it can be so easily evaded.”

At a broad level, the case appears ready-made for a 6-3 conservative court that has repeatedly sided with religious interests in other cases in recent years. In one series of decisions, the court has made clear that when the government opens educational funding programs up to public and private schools, it cannot bar religious schools from taking part in those programs just because they are religious.

Earlier this year, the Trump administration submitted an uninvited brief in the Supreme Court supporting the dioceses. Upholding the law, the Justice Department said could “stymie religious exercise in major portions of the country.”

But the religious groups were asking for a decision that could also have sweeping implications for the power of religious interest to challenge other laws beyond education. To begin with, they asked the Supreme Court to overturn a 36-year-old precedent that has been maligned by both Democrats and Republicans but that even the conservative court has, so far, been unwilling to nix.

That precedent allows courts to uphold laws that affect religion as long as they are generally applicable – that is, they apply equally to religious and secular activity.

In a series of more recent decisions, the court has narrowed the definition of “generally applicable,” zeroing in on “exceptions” to those laws. During the pandemic, and after conservative Justice Amy Coney Barrett replaced liberal Justice Ruth Bader Ginsburg, the court shut down crowd control regulations that applied to churches but included exceptions for businesses like hardware stores.

In the Colorado case, the religious groups argued that the state law carved out several important secular exceptions to the nondiscrimination prohibition. For instance, the program allows schools to favor low-income children or children with disabilities. Those exemptions, Becket said, meant that the law was no longer generally applicable and therefore not protected by the 1990 precedent.

A federal district court and the 10th US Circuit Court of Appeals flatly rejected that argument. The Catholic groups appealed to the Supreme Court in November.

Court declines 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 to use a new name and visit the boys’ bathroom, the girls’ bathroom, or a gender-neutral bathroom. The plaintiffs said that happened without their knowledge.

The case dealt directly with the issue of parental rights in a way that the court has, until recently, managed to avoid. In June, the court’s 6-3 conservative majority backed a group of religious parents who wanted to opt their elementary school children out of engaging with LGBTQ books in the classroom. The appeal from Foote and Silvestri deal with parents who object to the school’s action based not on religious grounds protected under the Frist Amendment but rather, in their words, on “moral and scientific reasons.”

But the Supreme Court wound up getting into many of the same questions in a recent emergency case involving a California education policy that restricts teachers from informing parents about a student’s 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 who seek religious exemptions are likely to succeed on the merits of their Free Exercise Clause claim,” the court said in an unsigned order.

The court’s three liberals dissented.

The merits case the court declined to hear involves a child identified as “B.F.” In a 2021 email to teachers and school officials, B.F. identified as genderqueer and asked to be called by a new name and for the school to use a range of pronouns that included both “she/her” and “he/him.” At home, according to court records, B.F. used “she/her” pronouns and requested that the school do so in correspondence with her parents.

“I am telling you this because I feel like I can trust you,” B.F. wrote in the email. “A list of pronouns you can use are: she/her he/him they/them fae/ faerae/aer ve/ver xe/xem ze/zir. I have added a link so you can look at how to say them. Please only use the ones I have listed and not the other ones. I do not like them.”

Citing state guidance and state law that bars discrimination on the basis of gender identity, the school obliged the request. That guidance recognizes a challenge school officials can face with transgender or gender nonconforming students: Those students are not always comfortable telling their parents “for reasons such as safety concerns or lack of acceptance.”

Genderqueer is an identity that describes people whose gender expression falls outside traditional male-female binary categories.

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