Washington — The Supreme Court on Tuesday is set to hear a dispute over religious rights when it weighs whether Colorado can exclude Catholic schools from its universal preschool program over their refusal to enroll students from families that don’t adhere to the church’s teachings on marriage and sex.
The case, known as St. Mary Catholic Parish v. Roy, is the latest clash over religious liberty and efforts to protect gay and transgender people from discrimination.
If the Catholic plaintiffs prevail, the decision would join a line of recent rulings in which the Supreme Court, which has a 6-3 conservative majority, has sided with religious institutions challenging their exclusion from state programs, opening the door for more public dollars to flow to religious schools.
“This is a program that was sold to them in Colorado as being universal, every child in the state would benefit,” Amanda Dixon, a lawyer with the Becket Fund for Religious Liberty, which is representing the Catholic preschools and families in the case, said of her clients. “Yet they’ve had multiple children now go through preschool who haven’t been able to benefit because they feel religiously obligated to send their kids to Catholic schools. They can’t get the same benefit that everyone in the state is getting.”
Colorado’s universal preschool program
Colorado voters approved a ballot measure in 2020 to provide state funding for a new program that intended to make preschool “widely available for free” to all 4-year-olds in the state.
Families are reimbursed for the cost of 15 hours of preschool per week, which amounts to more than $6,000 per year. The state uses a mixed-delivery system, meaning public, private, faith-based and secular preschools can participate. Those that do must sign a contract and meet state quality standards.
The statute that created the universal preschool program also imposed a nondiscrimination rule. It requires participating preschools to provide eligible children with an “equal opportunity to enroll,” regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, income level or disability.
Colorado estimates there are roughly 40,000 children who are eligible for universal preschool across nearly 2,000 providers.
When the program was being implemented, the Archdiocese of Denver, which oversees 34 Catholic preschools, raised concerns about the nondiscrimination requirement and its ability to comply without compromising its religious beliefs, particularly on sexual orientation and gender identity.
The Catholic providers sought a religious exemption to the mandate, since they only admit families that align with the Catholic Church’s teachings, including on sexual identity, marriage and family.
But the state denied the request and told the Archdiocese at the time that while it can give enrollment preference to its members, it cannot “discriminate against children or families in violation of state statute.” The preschool program’s regulations, however, no longer allow faith-based providers to limit enrollment to their congregants.
As a result, none of the preschools that the Archdiocese oversees participate in the universal preschool program.
In August 2023, the Archdiocese, two Catholic parishes with preschools and parents of preschool-age children filed a lawsuit, arguing that their exclusion violated the Constitution’s Free Exercise Clause.
The Catholic schools said that the mandate violated a 2022 Supreme Court decision in a case involving a tuition-assistance program in Maine. In that decision, the high court ruled that the state’s exclusion of religious schools from the program violated the First Amendment.
The plaintiffs also said that the state treated them differently when refusing to grant them exemptions to the nondiscrimination rule, since Colorado had granted exceptions for secular conduct by allowing preschool providers to prioritize enrollment for students from low-income families and with disabilities, but not religious conduct.
A federal district court ruled in favor of the state, finding that the sexual orientation and gender identity provisions of the nondiscrimination rule are neutral and apply generally to providers participating in the universal preschool program. The U.S. Court of Appeals for the 10th Circuit upheld the lower court’s decision.
The fight before the Supreme Court
In papers with the Supreme Court, lawyers for the Archdiocese and Catholic parishes argue that they are being unfairly excluded from the universal preschool program because of their religious exercise.
“This case is about whether states can do things like promise a universal program and then leave religious folks out,” Dixon said.
Catholic families, she said, “don’t want to be excluded from the ability to participate in this universal program just because they’ve chosen a Catholic program.”
The plaintiffs argued that the state has allowed more than 1,000 other preschools to serve 4-year-olds in specific communities by creating exceptions from the very provision it is saying the Catholic schools must follow.
The state allows preschools to prioritize enrollment for children with certain disabilities or who are living in poverty, conflicting with the requirement that eligible children have equal access to preschool services regardless of income level or disability, the Archdiocese argued.
Lawyers also said certain preschools can give enrollment preference to children of color or who are from families in the LGBTQ community.
“It was billed as universal, and instead we’re the ones that are being discriminated [against] because we’ve chosen our Catholic faith and a Catholic education for our children,” said Lisa Sheley, who, with her husband Daniel, is a plaintiff in the case.
The couple’s children attend school in St. Mary’s Catholic Parish, and they estimated that they have lost out on roughly $24,000 in reimbursements from the universal preschool program. Erika Nagle, who is preparing to send her third child to St. Mary Catholic Parish’s preschool, said the program would’ve saved her family around $18,000.
“We’re being forced to pay the price because of our Catholic beliefs,” Nagle said. “And it’s just such a tough pill to swallow — it’s a double standard because you see other schools that have been granted exemptions for communities that they serve. But here come the Catholic schools wanting an exemption for the communities that they serve, and they’re being denied.”
The Catholic parishes said that because Colorado excluded them from the universal preschool program because of their religious exercise, its actions should be evaluated under the most stringent form of judicial scrutiny. The state, they said, has failed to show it has a compelling interest in excluding religious schools from the program.
“The inevitable result of Colorado’s thumb on the scale is that more Colorado children will be funneled toward preschools that share Colorado’s perspective on matters of sex and marriage,” they said in a filing.
The Trump administration is backing the Catholic plaintiffs in the case.
But Colorado officials defending the program said religious preschools that participate can teach and develop curricula according to their faith. They just have to comply with the same “equal opportunity” mandate that applies to the other providers, which “requires all preschools — secular and religious alike — to deliver publicly-funded services without excluding families based on protected-class status,” they said.
The Catholic preschools want to receive public funding without following the nondiscrimination requirement, which would allow them to turn away students based on their or their parents’ sexual orientation or gender identity, the state said.
“When the state is putting its stamp on something and then the entity is able to say, ‘You don’t belong,’ that communicates something,” said Scott Skinner-Thompson, a professor at the University of Colorado Law School. “Even if there is a second-best option, it still deeply negatively impacts the people who are turned away and have to go look for that second-best option.”
Skinner-Thompson said nothing in Colorado’s law requires the schools participating in the universal preschool program to change what they teach.
“Colorado isn’t telling any of those schools what to believe or what not to believe, what to practice or what not to practice,” he said. “All they’re saying is, if you want to have a preschool and get this subsidy, please accept LGBTQ kids and families.”
Colorado officials argued in a filing with the Supreme Court that the Archdiocese and Catholic preschools are asking it to allow them to receive public dollars on terms that are different from the ones applied to every other participating preschool. Under those terms, they would be allowed to exclude families based on protected-class status.
“The Constitution,” the state said, “does not support that result.”
