Q&A: Another Colorado anti-discrimination case heads to the Supreme Court

DENVER — The Supreme Court announced earlier this week it would hear a case determining if Colorado preschools that deny enrollment for children of same-sex couples can participate in the state-funded universal preschool program.

The plaintiffs include St. Mary Catholic Parish in Littleton, St. Bernadette Catholic Parish in Lakewood, two parents and the Archdiocese of Denver, which operates nearly 40 preschools in the state. The plaintiffs argue that Colorado is violating their First Amendment rights by excluding them from the state’s universal preschool program, which offers 10 to 30 hours of preschool per week in the year before kindergarten.

The state says that the plaintiffs don’t qualify for the program because they do not allow LGBTQ+ families to enroll at the churches’ preschools. The U.S. Court of Appeals for the 10th Circuit sided with the state in a 2025 ruling, writing “when a school takes money from the state that is meant to ensure universal education, then its doors must be open to all.”

The Supreme Court, however, with its 6-3 conservative majority, could rule differently. The high court is expected to hear arguments for the case in the fall.

The case is the latest in a series of religious freedom and anti-discrimination cases from Colorado to reach the Supreme Court. The court’s conservative majority has consistently ruled in favor of plaintiffs who argued that anti-discrimination laws conflict with their religious beliefs. In 2018, the Supreme Court ruled in favor of Masterpiece Cakeshop in Lakewood, whose owner refused to make a wedding cake for a gay couple. In 2023, the court ruled that Colorado could not compel a web designer to make custom sites for same-sex couples. And earlier this year, the court overturned Colorado’s law banning conversion therapy, saying it regulates speech based on viewpoint.

To learn more about St. Mary Catholic Parish v. Roy — the universal preschool case — as well as Colorado’s involvement in recent Supreme Court decisions, Rocky Mountain PBS spoke with Scott Skinner-Thompson, a professor at Colorado Law School who researches constitutional law with a focus on LGBTQ+ rights.

This conversation has been edited for length and clarity.

Rocky Mountain PBS: This is yet another anti-discrimination case out of Colorado that has made its way to the Supreme Court. How does this case compare to recent decisions with plaintiffs from Colorado?

Scott Skinner-Thompson: Because the people of Colorado have chosen to protect LGBTQ people from discrimination in a variety of contexts, whether that be education or public accommodation, groups that are concerned that those protections go against their expressive or religious beliefs have really honed in on Colorado. This is a marked shift from when Colorado was quote-unquote the “Hate State” because of Amendment 2, wherein the voters tried to exclude LGBTQ people [from anti-discrimination protections]. The Supreme Court ruled … [Amendment 2] was unconstitutional under the equal protection clause.

Now you have a moment where the democratic process — the voters and their representatives — is protecting a group of people, and the First Amendment is being weaponized to erode the scope of those protections and, really, potentially leaving all sorts of marginalized groups vulnerable to challenges.

In the St. Mary’s case, the Supreme Court seems open to potentially concluding that the state, when it makes funds available to private educational institutions and, as many states do, conditions the use of those funds on certain requirements — in this case, on the requirement that the schools not discriminate against LGBTQ people — the Supreme Court seems eager to investigate whether that infringes on Catholic preschools’ First Amendment rights.

And make no mistake, the Catholic preschool is under no obligation to take this money. They have chosen to take it, or want to take it, but they’re saying, “We literally want the cake and to eat it, too. We want to take your money and not be required to comply with the norms that the people of Colorado have said are important, including not discriminating against gay kids.”

RMPBS: Obviously, arguments have not happened in this case yet. But based on recent history and your professional opinion, how do you expect the justices to handle this case?

SST: Well, in my view, St. Mary’s is a very easy case. The Supreme Court has long held, dating back to a case called Employment Division v. Smith, that where you have a law that is “generally applicable” … and that law, which applies to everyone — it wasn’t targeted at a religious practice; it was not about religion — burdens religious practice, then that law is only subject to “rational basis,” or low-level constitutional review.

In contrast, when a law is targeted at a specific religious group, then it’s subject to strict scrutiny. But under Employment Division v. Smith, generally applicable laws are subject to rational basis review, and Colorado’s law here in the preschool case is generally applicable.

[The Supreme Court, when it agreed to hear the St. Mary case, said it would not decide if Employment Division v. Smith should be overruled. But some of the court’s conservative justices have said the case should be revisited — or overruled.] 

Colorado is saying, “If you’re a private preschool and want to do this [enroll in the state-run universal pre-K program], you can get funding whether you’re religious or not.” So it’s opening the door to religious education. Colorado does not have to do this. Colorado does not have to fund private preschools, nor does it have to fund religious preschools. It’s choosing to do that; it's giving a benefit to these schools, and it did so after consultation with religious leaders.

And now religious groups are saying, “Oh, we want the money, but we don’t want to have to comply with anything you say.” 

The law being challenged — “don’t discriminate against queer kids or queer parents” — is generally applicable. It isn’t targeted at the Catholic Church. It applies to any private school that wants to participate in the program, including secular private schools. So in my view, it should be subject to rational basis review and upheld.

RMPBS: Do you think that’s likely?

SST: So, predicting Supreme Court cases is precarious business. [Laughs.] 

I believe that this case is a very weak case on behalf of the petitioners. Yes, [the court] granted cert. It only takes four [justices] to grant cert.

I think Colorado is well-positioned to win this case, even compared to some of these prior cases we’ve been discussing.

RMPBS: Is there a specific reason that several of these religious freedom, anti-discrimination cases have come out of Colorado?

SST: It’s a good question. I would say yes and no. These challenges are going to be brought in states that have strong LGBTQ protections. So that gets us down to about half of the states. And make no mistake: these challenges were brought in other states. It’s not as if Colorado is the only one facing these challenges. There was a First Amendment challenge to California’s ban on conversion therapy. There were challenges to Washington state’s public accommodation laws — a flower vendor challenged their anti-discrimination law.

What I think is occurring a little bit is that in some of these cases, particularly where the plaintiffs — religious or free expression advocates — are bringing pre-enforcement challenges. Take the Chiles [conversion therapy] case for example. It wasn’t as if Colorado ever started an enforcement action against the therapist in that case. She brought a pre-enforcement action, trying to say … that basically she was under “likelihood” it [the ban on conversion therapy] would be enforced against her. And part of the reason she was able to make that claim was because Colorado had tried to enforce its anti-discrimination laws in the past in Masterpiece. Colorado did try to protect same-sex couples against the cake baker in that case.

So the plaintiffs are able to say, “We’re under credible threat of enforcement and therefore you should hear my case,” even though no particular enforcement action had been brought.

And then I think part of it is optics. They’ve got their state villains, so to speak, so they’re painting a story about what they believe is legislative overreach.

RMPBS: How has the will of the voters played out in court cases involving LGBTQ+ rights?

SST: When LGBTQ individuals have sought to vindicate their constitutional rights before the Supreme Court, including in the marriage cases, a lot of the dissenters, including Chief Justice Roberts, have said, “Oh, no. You’re short-circuiting democracy. The court shouldn’t be deciding a right, on equal terms, to marriage. Let the democratic process play out. Let the people decide.”

Well that’s what’s happening here. The people have decided. Colorado has decided to protect LGBTQ people — in a certain light, taking Chief Justice Roberts’ advice — but now the Supreme Court is saying, “Just kidding! We said exercise your right at the ballot box but now we’re going to use the First Amendment to erode your democratically enacted rights.”

RMPBS: Earlier, when you said hearing these cases is partially about optics, you used the phrase “state villains.”

SST: Yes.

RMPBS: And you think Colorado is one of those?

SST: Yes. I mean, primarily. [Laughs.]

RMPBS: Speaking of the conversion therapy case, I think a lot of people were surprised that two of the liberal Supreme Court Justices [Sonia Sotomayor and Elena Kagan] sided with the conservative majority. Was that unexpected for you?

SST: I was surprised by it. I don’t know, but I can imagine that Justices Kagan and Sotomayor are trying to play a long game here. The First Amendment and free speech rights have been powerful allies for many minoritized groups, including LGBTQ [people] before there were any formal rights to equality.

The first Supreme Court cases addressing LGBTQ rights were First Amendment cases, saying “You have a right to gay-themed literature. You have a right to not be fired from public jobs based on your identity … and your speech.” So the First Amendment has protected queer people, historically.

And we’re seeing queer people being targeted for their identity and expression now. And so one of the first things that Justice Kagan writes about in her concurrence [in Chiles] is that the government shouldn’t attack certain ideologies. She uses ideology in quotes, I believe. [Editor’s note: she does.]

And so what I think she and Sotomayor are teeing up is: the Trump administration has been crystal clear in the fact that they’re going after queer people based on what they perceive is their ideology. Of course, believing that queer people exist isn’t ideological; it’s just fact. But I think that what [Kagan and Sotomayor] are trying to tee up is: “OK, when a law targets you based on ideology, on viewpoint, that’s where the First Amendment has been historically robust.”

So I think they were trying to do some defense, thinking to the long term, and trying to help the other justices on board for the First Amendment challenges to the Trump policies that are going to come.

RMPBS: I’m curious, too, when we talk about anti-discrimination cases in general, how cases involving queer folks differ from other minority groups or protected classes. It’s not always apples to apples, but is the court handling these cases differently than if the group in question was, say, a racial minority?

SST: Yes. In the years following the Civil Rights Act of 1964, which protected people from race discrimination and sex discrimination in a variety of social contexts, including employment, First Amendment challenges based on freedom of religion were brought by those who didn’t want to treat Black people as full members of society. The court rejected those claims as “patently frivolous," saying that complying with a generally applicable law, even if it burdened your speech, would be justified. So the court didn’t really take these cases seriously.

But as it pertains to LGBTQ discrimination, they’ve taken a much different tact.

RMPBS: Do you think that’s because of the partisan makeup of the existing court, or do you think that’s also because of public opinion in general?

SST: On a normative level, I think it’s because of continued misunderstanding on behalf of the court about queer identities. On a jurisprudential level, arguably the court could justify it by saying, “Race discrimination is the most important discrimination to combat. Other forms of discrimination are less important and so therefore they don’t trump First Amendment rights.”

RMPBS: If the court does rule in favor of St. Mary’s, what are the implications for the universal pre-K program in Colorado, or other programs?

SST: I think that this is a good example of, like, “careful what you wish for.” One implication is they [the state] no longer can enforce the LGBTQ anti-discrimination policy. Another possible result is that Colorado just decides not to fund private schools that are doing preschool. They are under no obligation to do that. Which would be a loss for all children.