Washington — The Supreme Court on Tuesday will take up a major religious-liberty dispute over whether Colorado may bar Catholic schools from its universal preschool program because they will not enroll children from families whose views on marriage and sex conflict with Catholic teaching.
The case, St. Mary Catholic Parish v. Roy, is the latest legal battle involving religious freedom and government efforts to shield gay and transgender people from discrimination.
A ruling for the Catholic plaintiffs would add to a series of recent decisions in which the Supreme Court’s 6-3 conservative majority has backed religious institutions challenging their exclusion from state-funded programs. Such a decision could make it easier for public money to reach religious schools.
“Colorado presented this as a universal program, where every child in the state would benefit,” said Amanda Dixon, an attorney with the Becket Fund for Religious Liberty, which represents the Catholic preschools and families. “But multiple children have now gone through preschool without receiving that benefit because their families feel religiously obligated to choose Catholic schools. They cannot access the same benefit as everyone else in the state.”
Colorado’s universal preschool program
Colorado voters approved a ballot measure in 2020 creating a state-funded program designed to make preschool “widely available for free” to all 4-year-olds.
The program reimburses families for 15 hours of preschool each week, worth more than $6,000 annually. It relies on a mixed-delivery model that includes public, private, religious and secular providers. Participating schools must sign state contracts and meet specified quality standards.
The law establishing the program also includes a nondiscrimination requirement. Participating preschools must give eligible children an “equal opportunity to enroll,” regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, income or disability.
State officials estimate that about 40,000 children are eligible for universal preschool through nearly 2,000 providers.
As Colorado prepared to launch the program, the Archdiocese of Denver, which oversees 34 Catholic preschools, questioned whether it could meet the nondiscrimination requirement without violating its religious beliefs, particularly those concerning sexual orientation and gender identity.
The Catholic providers requested a religious exemption. They said they admit only families whose beliefs and practices are consistent with Catholic teaching on sexual identity, marriage and family.
Colorado rejected the request, telling the Archdiocese that it could give enrollment preference to members of its faith but could not “discriminate against children or families in violation of state statute.” Program rules have since been revised and no longer permit faith-based providers to restrict enrollment to congregants.
Consequently, none of the Archdiocese’s preschools participates in Colorado’s universal preschool program.
In August 2023, the Archdiocese, two Catholic parishes operating preschools and several parents sued the state. They argued that excluding them violated the Constitution’s Free Exercise Clause.
The Catholic schools also pointed to a 2022 Supreme Court ruling involving Maine’s tuition-assistance program. In that case, the justices held that Maine had violated the First Amendment by excluding religious schools from state aid.
The plaintiffs further argued that Colorado applied its nondiscrimination policy unevenly. They said the state had authorized exceptions for secular reasons, including allowing providers to prioritize low-income children and children with disabilities, while refusing to accommodate religious objections.
A federal district court sided with Colorado, concluding that the provisions covering sexual orientation and gender identity were neutral and applied broadly to all providers in the program. The U.S. Court of Appeals for the 10th Circuit affirmed that decision.
The fight before the Supreme Court
In briefs filed with the Supreme Court, attorneys for the Archdiocese and the Catholic parishes say the schools were excluded because of their religious practices and beliefs.
“This case asks whether states can promise a universal program and then leave religious families out,” Dixon said.
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She said Catholic families “should not be shut out of a universal program simply because they have chosen a Catholic preschool.”
The plaintiffs contend that Colorado has allowed more than 1,000 other preschools to serve 4-year-olds in particular communities by granting exceptions to the same provision the state says Catholic schools must follow.
The Archdiocese says the state permits providers to prioritize children with disabilities or those living in poverty, even though the law calls for equal access regardless of income or disability.
Its attorneys also said some preschools may give preference to children of color or children from LGBTQ families.
“The program was advertised as universal, yet we are the ones being treated unfairly because we chose our Catholic faith and a Catholic education for our children,” said Lisa Sheley, a plaintiff who filed the case with her husband, Daniel.
The Sheleys’ children attend St. Mary’s Catholic Parish school, and the couple estimates they have missed out on about $24,000 in preschool reimbursements. Erika Nagle, who plans to enroll her third child at the parish preschool, said the program could have saved her family approximately $18,000.
“We are paying the price for our Catholic beliefs,” Nagle said. “It is difficult to accept. Other schools have received exemptions for the communities they serve, but when Catholic schools seek an exemption for their own communities, the state refuses.”
The Catholic parishes argue that because Colorado excluded them based on their religious exercise, the policy should face the highest level of constitutional review. They maintain that the state has not demonstrated a compelling interest in keeping religious schools out of the program.
“By placing its thumb on the scale, Colorado will inevitably steer more children toward preschools that share the state’s views on sex and marriage,” the parishes said in a court filing.
The Trump administration is supporting the Catholic plaintiffs.
Colorado officials, however, defending the program, say participating religious schools remain free to teach and develop curricula according to their faith. They must simply follow the same “equal opportunity” rule as every other provider, which “requires all preschools — secular and religious alike — to deliver publicly funded services without excluding families based on protected-class status,” the state said.
Colorado argues that the Catholic preschools want public funding while avoiding the nondiscrimination requirement, allowing them to reject students based on the sexual orientation or gender identity of the children or their parents.
“When the state places its endorsement on a program and an organization can then say, ‘You do not belong,’ that sends a message,” said Scott Skinner-Thompson, a professor at the University of Colorado Law School. “Even if another option exists, being rejected and forced to find that second-best option can have a profound negative impact.”
Skinner-Thompson said Colorado’s law does not require participating schools to change their religious instruction or curriculum.
“Colorado is not telling these schools what to believe, what not to believe, what practices to follow or what practices to reject,” he said. “The state is saying that if you want the preschool subsidy, you must accept LGBTQ children and families.”
In a Supreme Court filing, Colorado officials said the Archdiocese and Catholic preschools are seeking access to public funds under conditions unavailable to other providers. The requested exemption would permit them to exclude families based on protected characteristics.
“The Constitution,” the state wrote, “does not permit that outcome.”
