Supreme Court grapples over whether Colorado can exclude religious schools from pre-K funding for opposing gay marriage

WASHINGTON — The Supreme Court’s conservative justices signaled Tuesday they may side with Catholic preschools who refused to sign a pledge to welcome students whose parents are transgender or gay.At issue is whether a state may, without ever naming religion, attach a condition to public money in Colorado’s taxpayer-funded universal preschool program it knows certain faiths cannot accept.Colorado launched its Universal Preschool Program in 2023, providing 15 hours per week of tuition-free preschool to every 4-year-old in the Centennial State.The program is open to public, private, and religious schools as long as they sign a nondiscrimination pact agreeing that a child or parent’s sexual orientation or gender identity won’t impact their enrollment.Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett all pressed Colorado’s conditions, while Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson warned that the parishes were asking for a special exemption that no secular school enjoys.Chief Justice John Roberts, who could hold the deciding vote, pressed both sides.Roberts opened by noting that the court’s last three rulings for religious schools each struck down laws that singled out a religion by name; Colorado’s does not.“I’m not quite sure how you limit the applicability of your principle,” he told Nicholas Reaves, the lawyer for the parishes, asking whether it would apply to driver’s licenses, employment benefits and Social Security.“It seems to me that you’re quite anxious to bury Sherbert,” Roberts later told Colorado’s lawyer, Helen Norton, “perhaps as anxious as the other side is to bury Smith.”The heart of the dispute lies between those two cases.Sherbert v.

Verner, decided in 1963, barred the government from denying benefits over a person’s religious practice — unless it could survive strict scrutiny, the highest legal standard the government must meet to defend a law or policy.Employme...