Supreme Court weighs Catholic preschools’ challenge to Colorado funding rules

The Supreme Court will hear arguments Tuesday over whether Colorado can require Catholic preschools to follow its nondiscrimination rules to receive public funding, in a case that pits religious freedom claims against protections for LGBTQ families.

The Archdiocese of Denver and two Catholic parishes say the rules prevent their preschools from joining a state-funded program because their admissions policies follow Catholic teachings on same-sex relationships and transgender identity. Colorado says religious schools are welcome to participate if they meet the same equal-opportunity requirements as other preschools.

The program provides families with 15 hours a week of state-funded preschool, according to The Guardian. NBC News reported that voters approved the program in a 2020 statewide referendum. To participate, providers must give eligible children an equal opportunity to enroll regardless of factors including race, religion, sexual orientation, gender identity, income or disability.

The Catholic plaintiffs argue that conditioning funding on that requirement violates their First Amendment right to exercise their religion. In court papers, lawyers from the religious liberty group Becket called the case “uncomplicated,” saying Colorado “knowingly excluded Catholic preschools solely on account of their religious exercise.” The Trump administration backs the challengers, NBC News reported.

Colorado’s lawyers, led by Attorney General Phil Weiser, a Democrat, say the rules apply to all participating preschools, including religious ones. The Catholic preschools “want to receive public funding without complying with those conditions,” they wrote. A lower appeals court ruled for the state, saying Colorado had not excluded religious preschools and had “welcomed and actively solicited their participation,” according to The Guardian.

The plaintiffs counter that Colorado permits participating schools to give some applicants priority. NBC News reported that they point to allowances for children with disabilities and those from low-income families, which the challengers say “expressly conflict” with the state’s equal-access requirement. Colorado says those provisions advance its goal of ensuring disadvantaged children are not denied entry. The archdiocese also claims the state allows schools to favor LGBTQ families and other groups, The Guardian reported.

The case, St Mary Catholic Parish v Roy, follows other Supreme Court disputes over religious participation in government programs. Under a 1990 ruling, Employment Division v. Smith, religious exemptions are generally not required from laws that apply equally to everyone. The court has not overturned that ruling, though it ruled in 2021 that Philadelphia could not bar a Catholic group from its foster care program because of the group’s views on same-sex couples.

According to NBC News, the archdiocese operates 34 Colorado preschools. Catholic Charities preschools participate in the state program; they have a different mission from those run directly by the church and do not require attendees to follow Catholic teachings. The other plaintiffs include St. Mary Catholic Parish in Littleton, Bernadette Catholic Parish in Lakewood, and St. Mary parishioners Daniel and Lisa Sheley. Their lawyers say the Sheleys have been unable to use more than $12,000 in tuition assistance because they chose a church preschool. The challengers sued in 2023 and lost in lower courts before seeking Supreme Court review.