Supreme Court Hears Oral Arguments on Religious Exemptions to LGBTQ Nondiscrimination Requirements
On November 3, the Supreme Court heard oral argument in St. Mary Catholic Parish v. Roy. The case concerns whether, under the First Amendment, religious schools are entitled to religious exemptions from laws that bar discrimination against LGBTQ children and parents. Petitioner, a Catholic preschool, contends that it is entitled to an exemption from a nondiscrimination agreement that Colorado requires schools to sign as a condition of receiving funding through its universal preschool program. The state maintains that “Colorado welcomes religious preschools” into the program, so long as they comply with “the same conditions that every publicly funded preschool must meet, religious and secular alike.”
Oral argument suggests that a majority of the Court seems ready to side with the religious school. The questioning suggests that the majority views the case as analogous to Carson v. Makin, a 2022 decision in which the Court struck down a state’s explicit restriction on religious schools participating in a state funding scheme. Conversely, a minority of the Justices seem to view the requested exemption as unwarranted relief from a neutral nondiscrimination requirement that, unlike in Carson, applies equally to every school in the program, religious or not.
Petitioner argued that “for the Catholic Church, it’s not about excluding anyone based on who they are.” Justice Sotomayor challenged the assertion, stating, “I don’t see how that can be. [The preschool is] saying, we’ll exclude your children if their parents are homosexual.”
Chief Justice Roberts asked why it should not make a “significant difference” that the law in Carson and other cases in its lineage “expressly discriminated against religious schools on its face,” which “is not the case here.” But Chief Justice Roberts later stated, “I think the effect of the law in Carson is pretty much the same as the effect of the law here.” Justices Alito, Barrett, Gorsuch, and Kavanaugh’s questions also suggested that they may be inclined to hold that in enacting the law, Colorado was attempting to skirt Carson’s holding, and that implicit exclusion of religious schools must be treated the same as explicit exclusion.
Justices Jackson and Kagan suggested that ruling in favor of the preschool would require the Court to grant it a “special” status on account of its religious beliefs, in conflict with Employment Division v. Smith. Justice Kagan restated Petitioner’s position as, “even though religious people are being treated the same way on the face of the statute, that’s not enough.” Justices Jackson and Kagan seemed to suggest that to rule in favor of the preschool, the Court would have to grant religious exercise a status higher than, not equal to, other First Amendment rights.
On the other hand, Justice Kavanaugh seemed to support the Petitioner’s point that this nondiscrimination law is not the type of “neutral law of general applicability” contemplated in Smith because it grants exemptions to non-religious schools, including allowing certain schools to admit only low-income families or children with disabilities. And Justice Thomas noted that the Court “did not use, even cite, Smith” in its last two decisions about religious schools and public benefits.
Justice Sotomayor suggested that if the Court upheld the preschool’s exclusion of LGBTQ students and parents on account of the school’s religious belief, nothing would stop another religious institution from excluding people on the basis of race or national origin. But Justices Alito and Gorsuch later appeared to distinguish those issues. Their questions noted that strict scrutiny would apply in that scenario, and Supreme Court precedent holds that the government does not have a “compelling interest” in exclusion on the basis of race or national origin.
Finally, Justices Gorsuch and Barrett pushed back on Justice Sotomayor’s suggestion that applying strict scrutiny to nondiscrimination laws like this one would be a “sea change.” Instead, they suggested, it would simply mirror the test already used under the Religious Freedom Restoration Act (“RFRA”), which governs the federal government and is matched by RFRA equivalents in 40 states.
The Court’s decision is expected in 2027.