"Why not seek the win/win?" Justice Brett Kavanaugh posed that question to Colorado's attorney during last week's oral argument in St. Mary Catholic Parish v. Roy, a case involving Catholic preschools and the state's nondiscrimination requirements. His question raises a broader issue: Why is compromise so difficult in conflicts between religious freedom and LGBTQ rights?
Some background: Colorado operates a universal preschool program that provides public funding for children attending participating schools, including religious schools. But participating schools must agree not to discriminate on several grounds, including sexual orientation and gender identity. Catholic preschools argue that these requirements interfere with their religious mission, which includes teaching Catholic doctrine about marriage and requiring families to support that teaching. Colorado maintains that religious schools may participate, but must comply with the same nondiscrimination requirements as other schools.
During oral argument, Kavanaugh noted that approximately 2,000 preschools participate in Colorado's program, while only 34 Catholic preschools are involved in the dispute. The record does not identify any family headed by a same-sex couple that has sought admission for a child to one of these schools and been rejected. Why couldn't Colorado accommodate these schools while ensuring that other families had ample preschool options?
