Court to hear argument in religious discrimination challenge brought by Catholic preschools in Colorado

The Supreme Court will hear oral argument on November 3 in a case brought by the Archdiocese of Denver and two Catholic parishes challenging Colorado's universal preschool program.

The Catholic preschools argue that their exclusion from the program violates the First Amendment because Colorado will not exempt them from a nondiscrimination requirement. That requirement mandates that participating preschools serve eligible children regardless of sexual orientation, gender identity, and other protected characteristics. The preschools say they object to admitting LGBTQ children and children with LGBTQ parents, which they contend conflicts with Catholic Church teachings on sex and marriage.

Under the universal preschool program, Colorado families can receive up to 15 hours of free preschool per week at participating schools. To participate, preschools must sign a nondiscrimination agreement and comply with state standards. Over 1,000 preschools participate in the program.

Colorado states that religious preschools remain welcome to participate and that the nondiscrimination requirement applies equally to all preschools, public and private, secular and religious. The state argues it is not excluding religious institutions from public funding.

The U.S. Court of Appeals for the 10th Circuit ruled for Colorado. The court found that Colorado did not categorically exclude religious preschools and that the nondiscrimination requirement is generally applicable and not a targeted burden on religious exercise. The court of appeals cited Employment Division v. Smith, holding that generally applicable laws do not violate the Constitution even if they burden religious practices.

At the Supreme Court, the parties will address two main questions. First, the scope of Carson v. Makin, the 2022 decision striking down a Maine law that withheld public funding from schools providing religious instruction. Second, what a challenger must show to prove a law is not generally applicable under Smith and Tandon v. Newsom.

The plaintiffs include the Archdiocese of Denver and two parents of preschool-aged children. One of the two parishes with a preschool named as a plaintiff has since closed.