U.S. Supreme Court to take Colorado case about public funding for Catholic preschools that bar LGBTQ families

“Sign up for Chalkbeat Colorado’s free daily newsletter to get the latest reporting from us, plus curated news from other Colorado outlets, delivered to your inbox. The U.S. Supreme Court has agreed to hear a Colorado case alleging religious discrimination against two Catholic preschools that wanted to participate in the state’s universal preschool program but didn’t want to have to admit LGBTQ children or children from LGBTQ families. The court announced the decision Monday morning and will likely hold oral arguments in the fall. The Trump administration has weighed in on the side of the Catholic preschools. The question at the heart of the case asks if private religious schools that accept public education dollars can refuse to enroll students based on religious principles. The state and two lower courts have said no. The Supreme Court, which has a conservative majority, could give a different answer. The Catholic preschools sued the state in 2023 as Colorado launched its new universal preschool program, which provides tuition-free preschool to 4-year-olds statewide. The $349 million program serves more than 40,000 children and allows families to choose from public, private, or religious preschools. St. Mary Catholic Virtue School in Littleton and Wellspring Catholic Academy in Lakewood wanted to join the program when it started, but didn’t want to admit LGBTQ children or children from LGBTQ families. They said admitting such children would conflict with Catholic beliefs on sex and gender. The preschools asked for an exemption from state non-discrimination rules, but the Colorado Department of Early Childhood refused. The two preschools never joined the program, and the case went to court. In September, the 10th Circuit Court of Appeals upheld a key part of a lower court decision, handing Colorado a major win and the two Catholic preschools a defeat. In its ruling, the court wrote that it found no proof that the Colorado Department of Early Childhood took actions that “evidence religious hostility,” as the two Catholic preschools claimed. The state’s universal preschool program “went to great effort to be welcoming and inclusive of faith-based preschools’ participation,” the decision said. Of more than 2,000 preschools participating in Colorado’s universal preschool program this year, about 40 are religious. Attorneys from the Becket Fund for Religious Liberty, which is representing the Catholic preschools in the case, argue that Colorado’s universal preschool program excludes the preschools based on their religious beliefs. It cites a major 2022 Supreme Court decision, Carson v. Makin, that said states can’t prevent religious schools from accessing public dollars because they are religious. Becket argues that courts have circumvented that decision, including in the Catholic preschool case, by applying it only when governments specifically target religious groups with their rules. The Carson decision should also apply when government rules affect free exercise of religion, the suit says. It says courts have worked around the Carson decision by citing a 1990 Supreme Court decision over whether Oregon could deny unemployment benefits to someone who used peyote in a religious ceremony. That decision held that the Constitution’s Free Exercise clause doesn’t exempt people from obeying neutral, generally applicable laws even if those laws burden religious practices. The preschool program’s non-discrimination rules apply to all preschools, not just the Catholic ones. The rules bar discrimination based on various characteristics, including sexual orientation and gender identity. Wellspring, one of two parish preschools involved in the case, closed last year along with Wellspring’s K-8 school because of low enrollment and financial problems. Ann Schimke is a senior reporter at Chalkbeat covering early childhood issues and early literacy. Contact Ann at aschimke@chalkbeat.org .

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