"It seemed like a number of the justices were really focusing on the key issues and really understood the importance of the religious liberty questions here," Becket Fund for Religious Liberty Legal Counsel Amanda Dixon observed during a Thursday appearance on "Washington Watch with Tony Perkins." "We're optimistic for a good outcome and really hoping that that carries over into a great opinion defending religious liberty."

Attorneys from the Becket Fund and First Liberty Institute represented the plaintiffs, including the Archdiocese of Denver, multiple Catholic parishes with preschool programs, and parents of preschoolers, who are saying a Colorado Department of Early Education policy violates their First Amendment rights.

The state started a universal preschool program in 2023 to give Colorado families up to 15 hours per week of free schooling at select schools. Participating schools are required to sign a nondiscrimination agreement binding them to "provide eligible 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 Catholic preschool programs would be required to accept all LGBT families under the agreement, despite Biblically rooted convictions about the sanctity of marriage, excluding them from being able to participate.

"This is religious discrimination. Excluding religious schools simply because they won't conform to the state's views on marriage and sexuality is wrong," said First Liberty President Kelly Shackelford in a press release. "After our Supreme Court victory in Carson v. Makin, Maine enacted coercive conditions similar to those of Colorado to keep religious schools from being able to participate in its (tuition) program. In this case, the Supreme Court can once again remind state governments that what Maine and Colorado have done violates the Free Exercise Clause of the Constitution."

After the oral argument, SCOTUSblog reported that the majority of justices "seemed to agree with the challengers that Colorado's refusal to provide them with an exemption from rules that would require the preschools to admit all students—including LGBTQ children and children with LGBTQ parents—should be subject to a more stringent constitutional test than that applied by the lower court."

Dixon noted that several of the justices acknowledged Colorado's track record before the court on similar issues. "But the court was also focused on what precedents to apply," she continued. "There were several justices that were focused in on the efforts by states to evade the court's past good precedents on religious liberty."

The lawyer explained the justices referred to a variety of precedents, including the religious liberty cases of Trinity Lutheran Church of Columbia, Inc. v. Comer, Espinoza v. Montana Department of Revenue, and Carson v. Makin. "[In these cases] the court reaffirmed over and over again that states can't exclude religious folks from public benefits programs just because of their religious exercise," she said.

During the argument, liberal Justice Ketanji Brown Jackson suggested that the Catholic preschools in Colorado were asking for special treatment rather than equal treatment.

"It's an issue that came up a lot during the argument," Dixon explained. "This idea that religious accommodations, that allowing religious exercise to flourish is a special favor to religion rather than what the Free Exercise Clause requires or what neutrality toward religion requires. It was Justice Jackson's view that this looked more like a favor to her, but I think several of the other justices picked up on that thread and really explored why religious accommodations are just the way that a pluralistic society allows religious exercise to flourish, and what the Free Exercise Clause requires."

Family Research Council President Tony Perkins emphasized that the protection of religious freedom is not a favor but a right. "And that's why it's recognized in the Constitution," he asserted.

A ruling on the case is anticipated by the end of the court's term in June 2027. Subscribe for free to Breaking Christian News here

Quinn Delamater is a reporter for The Washington Stand.

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