By Henry Ashcroft
WASHINGTON — While voters line up at the polls on Tuesday, the Supreme Court will hear the highlight of its November calendar: a challenge from Catholic preschools in Colorado that say the state shut them out of its free universal preschool program because of their faith.
The case, St. Mary Catholic Parish v. Roy, is the centerpiece of a November argument session that opens Monday and runs through Nov. 10, with seven hours of argument over five days, according to SCOTUSblog.
What the preschools want
Under Colorado’s program, families can get up to 15 hours of free preschool a week at participating schools. To take part, preschools must sign a nondiscrimination agreement promising to give children “an equal opportunity to enroll and receive preschool services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability.”
The plaintiffs are the Archdiocese of Denver, two Catholic parishes with preschools, one of which has since closed, and two parents. They say Colorado will not give them a religious exemption from rules that would require them to admit LGBTQ children and children of LGBTQ parents.
In their brief, the preschools say they “have no objection to Colorado’s decision to allow over 1,000 … preschools to selectively serve the communities they are designed to serve.” They “simply want the same accommodation extended to them,” SCOTUSblog’s Amy Howe reported in her argument preview.
The challengers argue the case should be “an uncomplicated one,” because Colorado “knowingly excluded Catholic preschools solely on account of their religious exercise.” They describe that exercise as “their religious practices of ensuring that all enrolling families are supportive of the Catholic Church’s teachings on sex and marriage and of treating enrolled four-year-olds in accordance with their biological sex.”
What Colorado says
Colorado says the Catholic preschools “remain welcome to participate in” the program. But if they do, the state wrote, they must be “subject to the same equal-opportunity requirements that apply to all other publicly funded preschools—public and private, secular and religious.”
The state argues the preschools are asking the justices for a “new rule that would trigger strict scrutiny whenever public-benefits conditions incidentally burden religiously motivated conduct.” It says the Supreme Court’s school-funding cases “applied the settled principle that government may not target religion for disfavored treatment,” which Colorado says it has not done.
The U.S. Court of Appeals for the 10th Circuit agreed with the state. It found that Colorado “did not exclude” religious preschools, but instead “welcomed and actively solicited their participation.” The appeals court wrote that “the restrictions imposed by the nondiscrimination requirement universally cover enrollment policies and conduct, but they are not a targeted burden on religious use.”
The legal questions
The justices agreed in April to take up two questions. The first is how far to extend Carson v. Makin, the 2022 decision that struck down a Maine program that paid for private schooling but barred schools that provide religious instruction.
The second goes to the heart of modern free-exercise law. Under the court’s 1990 decision in Employment Division v. Smith, laws that are neutral and apply to everyone generally survive a religious challenge. The preschools argue Colorado’s rules are not generally applicable because the program lets schools give preferences to low-income families and children with disabilities, and gives the state discretion to approve other preferences.
Colorado responds that its law “expressly prioritizes specialized services for” those children because of the state’s “longstanding awareness that ensuring equal opportunity for these children often requires providing them with additional support.” Those preferences, the state says, do not undermine its equal-opportunity goals.
A broad ruling for the preschools could put new limits on the conditions states attach to programs that fund private and religious providers. A ruling for Colorado would leave states more room to require that every participating school follow the same enrollment rules.
The rest of the week, and a farm case to watch
The session opens Monday with two shorter cases, according to the court’s day call. In Maxwell v. Dinis, the justices will consider whether a federal inmate can use a habeas petition to challenge how prison officials applied First Step Act time credits toward release to a halfway house or home confinement. In Younge v. Fulton Judicial Circuit District Attorney’s Office, the question is whether a defendant can raise an affirmative defense later in a case after leaving it out of its answer to the complaint.
On Wednesday, the court hears Guerrero v. Johnson, about whether a death-row inmate can file a second federal petition claiming he is intellectually disabled and cannot be executed.
Next week brings Nielsen v. Watanabe, in which the federal government contends a federal prisoner should not be able to sue prison officials for damages over denied medical care; Hoffmann v. WBI Energy Transmission, on how to calculate “just compensation” when a private pipeline company uses federal eminent domain; and, on Nov. 10, Department of Labor v. Sun Valley Orchards.
That last case matters to farm country, including Western New York’s apple orchards and vegetable growers that hire seasonal guest workers. The question is whether the Labor Department can hold its own administrative hearings to collect money from employers who violate the terms of the H-2A visa program, SCOTUSblog’s case page shows. The Trump administration is defending the department’s power; the New Jersey farm says the dispute belongs in federal court.
The court typically releases audio of each argument the same day. Rulings in the November cases are expected by the end of the term next summer. Case documents for the preschool dispute are available on SCOTUSblog’s docket page.
Leave a Reply