Once again the Supreme Court is coming after Colorado on LBGTQ rights, agreeing to hear yet another such case in the next term, which starts in October, not long before the midterms.
Once again —easy prediction here — Colorado will lose in the LGBTQ-unfriendly high court, and the Catholic Church and religious right will win.
They probably won’t win with Colorado voters, who, in 2020, approved the ballot measure in question, which funds preschools —private, public, religious or otherwise — so long as they don’t discriminate against anyone, which seems like a small enough ask for your friendly neighborhood preschool.
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And yet, two Colorado Catholic parish preschools have brought the case all the way to the high court after they were ruled ineligible for the program because they don’t allow LGBTQ families to enroll at their schools.
Which sounds like discrimination to me. But what do I know?
I mean, will blameless 4-year-olds rot in hell — and/or infect their potential fellow students — for their parents’ perfectly legal, and I’d say perfectly moral, position on sexual orientation.?
Maybe.
Look, if the Supreme Court can rule in favor of the religious rights of Christian cakemakers over LGBTQ rights and Christian website designers and Christian state-licensed therapists who use conversion therapy, what are the odds it will rule against the Catholic Church in these matters?
Forget, if you can, what Donald Trump and JD Vance have had to say about Pope Leo XIV and his interpretation of church theology. This time, they’re all on the same side.
The two Catholic churches — St. Mary Catholic Parish in Littleton and St. Bernadette Catholic Parish in Lakewood — have been joined in the high court case by the Trump administration and the Archdiocese of Denver. We’re all one happy family, I guess, as long as no one in the family is gay or transgender.
The churches charge that they’re the ones being discriminated against because the state won’t take into account their teachings that a union can only be between one man and one woman. And therefore the state is limiting their right to religious freedom.
In other words, because the churches choose to discriminate, they’re being discriminated against.
And yet the courts, up to the U.S. Court of Appeals for the Tenth Circuit, have ruled that the law is neutral toward religion and that the schools are the ones guilty of discrimination.
Here’s what the Colorado law has to say: To participate, public and private schools cannot discriminate on the basis of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level or disability.
It’s all pretty clear, I’d think.
In affirming a lower court’s decision, The Court of Appeals seemed to agree, ruling that Colorado “went to great effort to be welcoming and inclusive of faith-based preschools’ participation.”
Meanwhile, the churches are basically saying they can set their own rules for eligibility in a state program.
The schools, after all, are not being forced to apply for the funds. Personally, I’m against taxpayer funding for all religious schools, but maybe that’s just me. And that’s not the point here.
I certainly don’t expect the court to follow my reasoning. What I expect is that the court will rule that law is somehow not neutral, which may well be a parting gift for far-right Justices Sam Alito and Clarence Thomas, who are both rumored to be considering stepping down from the court this year.
The supposedly neutral, balls-and-strikes court could lose Alito and Thomas not because of their age. But because of the possibility that Republicans will lose control of the Senate after the midterms, before they can safely retire.
And if Democrats are in charge, they likely would not confirm Supreme Court candidates as far to the right as either Alito or Thomas. I mean, would Democrats vote for — God help us — Ted Cruz if Trump were to nominate him?
I doubt Thomas will resign. In late 2028, he would break the record for the longest serving justice in Supreme Court history. But there are competing rumors about Alito, and I’m hardly in any position to judge.
In any event, though, I wouldn’t be surprised if Alito writes the majority opinion in this case.
There is apparently a precedent here, according to legal experts — a precedent that will, uh, blow your mind.
A 1990 case, Employment Division v. Smith, centered on whether a private drug rehabilitation center could fire two employees for using peyote in a ceremony in their Native American church. The peyote users won in several courts, but when it got to the Supreme Court, Justice Antonin Scalia, the court’s leading conservative thinker, wrote the opinion ruling against the employees.
He ruled that people’s religious beliefs do not excuse them from following “conduct that government is free to regulate.” He cited as examples paying taxes, vaccination requirements and child neglect.
Maybe that was obvious to conservatives in 1990. In 2026, the court’s conservatives, who venerate Scalia, don’t quite see it the same way. Vaccination requirements? Are you kidding? The smart money knows which way this is going to turn out.
But never mind Vegas.
When it comes to LGBTQ rights, the court can be counted on to rule that what happens in Colorado can never just stay in Colorado.
Mike Littwin has been a columnist for too many years to count. He has covered Dr. J, four presidential inaugurations, six national conventions and countless brain-numbing speeches in the New Hampshire and Iowa snow. Sign up for Mike’s newsletter.
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