The U.S. Supreme Court’s conservative majority appeared inclined Tuesday to let the Denver archdiocese exclude children of gay and transgender parents from its preschools while participating in Colorado’s publicly funded pre-K program. The case concerns whether the state can require religious providers to follow its nondiscrimination law as a condition of receiving funding.

Colorado launched the statewide program in 2022, offering early education to all four-year-olds. It provides $6,300 per child each year and allows religious schools to participate, provided they comply with state rules prohibiting discrimination, including on the basis of race, religion and ethnicity.

The Denver archdiocese argues that the requirement infringes on religious freedom and wants an exemption. Catholic Charities continues to participate in the program, while the archdiocese’s position is not shared by all Catholic dioceses in the state.

Several conservative justices questioned Colorado’s approach. Justice Neil Gorsuch asked whether the state was disregarding earlier Supreme Court decisions, while Justice Amy Coney Barrett questioned whether Colorado should have anticipated the dispute. Justice Brett Kavanaugh described the state’s law as a provocation and suggested families could choose among other preschools. Justice Samuel Alito said there was little evidence LGBTQ couples could not find alternatives.

Colorado Deputy Solicitor General Helen Norton countered that schools are not necessarily interchangeable. She described parents who may need a preschool with particular opening hours or one able to accommodate all of their children.

The court’s three liberal justices signaled opposition to the archdiocese’s position. Justice Ketanji Brown Jackson questioned whether the argument could be distinguished from religious objections to children attending school with Black students. Justice Elena Kagan said religious providers were seeking to be treated differently from others under the law. Justice Sonia Sotomayor told the archdiocese’s lawyer, Nicholas R. Reaves, that the school’s position would allow it to reject a child because the child’s parents are gay.

Chief Justice John Roberts was the only conservative justice described as expressing skepticism about the archdiocese’s argument. A ruling is expected by summer 2027.

Sources: NPR Politics.