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The Supreme Court is poised to make taxpayers fund anti-LGBTQ discrimination

Colorado’s latest attempt to protect same-sex couples from discrimination is almost certainly doomed in this Court.

For years, the Supreme Court has flirted with the question of whether religious conservatives may simply ignore laws prohibiting discrimination against LGBTQ Americans. The Court’s Republican majority frequently rules in favor of business owners and institutions that refuse to serve gay or trans people. But these cases often rely on ad hoc reasoning that seems designed to give religious conservatives a narrow win without resolving broader questions about whether people with anti-LGBTQ religious views have an absolute right to violate civil rights laws.

On November 3, however, the Court will hear St. Mary Catholic Parrish v. Roy, which squarely presents the question of whether the Constitution authorizes discrimination by religious schools. Given the Court’s past behavior in similar cases, it’s hard to imagine St. Mary ending in anything other than a victory for religious groups that wish to exclude sexual or gender minorities.

Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser.

The case also presents another, related question: When does the Constitution require states to subsidize religious institutions? The Republican justices’ recent decisions suggest that they are eager to make taxpayers spend a great deal more money to promote religion.

The case concerns a Colorado law that pays for preschool education for all 4-year-olds in the state. Families with eligible children may choose from a broad range of private and public schools, including religious schools. But the state also bars schools that participate in this program from discriminating on the basis of sexual orientation or gender identity.

Religious preschools that discriminate may continue to operate in Colorado. Although Colorado does have a broad ban on anti-LGBTQ discrimination, that ban exempts places that are “principally used for religious purposes.” So the sole issue in St. Mary is whether Colorado’s taxpayers must fund religious schools that engage in discrimination.

Until fairly recently, the question of whether a state would fund religious education was up to the state itself. In 2002, the Court ruled in Zelman v. Simmons-Harris that states had broad leeway to decide whether to fund religious education. They could, if they chose to, set up private school voucher programs that include religious schools. But they could also choose only to fund secular education.

In Carson v. Makin (2022), however, the Supreme Court abandoned this permissive approach. The case struck down a Maine program that offered private school tuition vouchers to students in sparsely populated areas where it was not cost-efficient for the state to operate a public........

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