Supreme Court to Hear Appeal in Colorado Preschool Funding Case Involving Religious Admissions Policy

The Supreme Court stated it will consider an appeal from Catholic preschools in Colorado excluded from the state's universal preschool program because they sought to admit only children whose families adhere to the church's teachings on gender and sexual orientation. The legal fight is known as St. Mary Catholic Parish v.

Roy. The Supreme Court has a 6-3 conservative majority. In its brief order taking up the case, the Supreme Court said it will not consider whether to overturn Employment Division v. Smith.

Smith, a 35-year-old decision, the Supreme Court held that laws burdening the free exercise of religion typically do not violate the First Amendment if neutral and generally applicable. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch have suggested that Employment Division v. Smith should be overruled.

Colorado's universal preschool program provides state funding for families to send their 4-year-olds to the preschool of their choosing. Under the program, all children in Colorado are eligible for at least 15 hours of free preschool each week in the year before they enter kindergarten. The program covers public and private preschools, as well as faith-based and in-home providers.

The law establishing the program includes a nondiscrimination provision requiring providers to ensure children have equal opportunity to attend regardless of religious affiliation, race, ethnicity, sexual orientation, gender identity, lack of housing, income level, or disability.

The state stated that faith-based providers can teach what they want but cannot decline to enroll children based on their or their families' protected-class status. In February 2023, the Archdiocese of Denver requested an exemption from the universal preschool program's nondiscrimination rule.

The Archdiocese of Denver oversees 34 Catholic preschools. The requested exemption would allow its preschools to admit only families who adhere to the Catholic Church's teachings, including on gender identity and sexual orientation. The Archdiocese of Denver stated that enforcing the nondiscrimination provision against faith-based providers would restrict their participation in the universal preschool program without compromising their sincerely held religious beliefs.

Colorado's Department of Early Childhood declined to provide the accommodation to the Archdiocese of Denver. The department reiterated that no provider may discriminate against children or families in violation of state statute. In August 2023, the Archdiocese of Denver, two parishes, and a family with children who attend parish schools filed a lawsuit challenging Colorado's refusal to grant the requested accommodation.

The plaintiffs argued they were entitled to an accommodation under the First Amendment's Free Exercise Clause because the universal preschool program created exemptions to the nondiscrimination requirement that made it not neutral and generally applicable.

The plaintiffs sought a court order preventing Colorado from enforcing the nondiscrimination rule against them with regards to religious affiliation, sexual orientation, and gender identity. In June 2024, the district court ruled for the state, finding that the universal preschool program is neutral toward religious practice and generally applicable, with no exceptions from its nondiscrimination policy.

U.S. Court of Appeals for the 10th Circuit unanimously upheld the district court's decision. The 10th Circuit stated that the nondiscrimination provision exists in harmony with the First Amendment and does not violate the parish preschools' free exercise rights.

The 10th Circuit stated that no preschool participating in Colorado's universal preschool program is allowed to consider sexual orientation or gender identity when making enrollment decisions. The 10th Circuit described Colorado's program as a model example of maintaining neutral and generally applicable nondiscrimination laws while trying to accommodate the exercise of religious beliefs.

The lower courts evaluated the law under rational-basis review and found it satisfies that test.

In its 2015 decision legalizing same-sex marriage, the Supreme Court said religious organizations would be protected by the First Amendment when teachings about marriage and sexuality split from secular beliefs.

The legal fight is the latest to land before the Supreme Court in recent years that involve religious entities' participation in state-funded programs.