Supreme Court weighs if Colorado program can force Christian preschools to adopt LGBT nondiscrimination rules

The U.S. Supreme Court heard oral arguments on Tuesday in a case over whether Colorado can bar two Catholic parishes from a publicly funded preschool program because they refuse to adopt an LGBT nondiscrimination statement.

The highest court in the U.S. heard arguments in St. Mary Catholic Parish v. Roy, which centers on a Colorado state program that receives public and private funding and allows eligible students to attend pre-kindergarten free of charge at participating schools.

At issue is the equal opportunity requirement of the Universal Preschool Program, which mandates that participating preschools “provide eligible children an equal opportunity to enroll and receive services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability, as such characteristics and circumstances apply to the child or the child’s family.”

The plaintiffs believe the antidiscrimination provision interferes with their ability to require students and families to follow Catholic teaching on issues including marriage and sexuality.

Nicholas Reaves, senior counsel at the Becket Fund, represented the Catholic parishes and other plaintiffs, telling the high court that state officials exempted secular schools from certain preschool aid program requirements.

“This is not a zero-sum game,” Reaves said in his opening remarks. “Letting families use universal preschool at Catholic schools won’t take away a single seat from the over 2,000 preschools already participating in the program.”

“In fact, letting Catholic schools in will create more seats for everyone, even for families who disagree with Catholic teachings.”

Justice Ketanji Brown Jackson expressed concern that the plaintiffs want to create a “special rule for religious schools” when it comes to discrimination.

Reaves rejected this claim, saying the parishes were “seeking the same thing that lots of other schools are allowed to do” and “if there’s a sincere religious exercise that’s being burdened, the government has to show a really good reason for doing that.”

Justice Sonia Sotomayor asked about rejecting children of same-sex couples for religious reasons, wondering whether that opens the door to racial discrimination on religious grounds.

Reaves sought to contrast race and sexual orientation, noting that in previous Supreme Court precedent, “the government said there is an overriding government interest” in preventing racial discrimination.

“If the government is excluding someone from a public benefit solely on account of their religious exercise, that would trigger strict scrutiny, and then the government can come forward and say ‘we have a really good reason for this,’” explained Reaves. “We just don’t think they have done that in this case.”

Colorado Deputy Solicitor General Helen Norton represented Colorado, saying in her opening remarks that religious schools are welcome to participate in the preschool aid program, which is “neutral towards religion.”

“The only thing Colorado asks is that they comply with the same conditions that every publicly funded preschool must meet, religious and secular alike,” Norton told the high court.

Norton said that “faith-based preschools remain free to teach their religious beliefs, including their beliefs about sex or gender or marriage; free to teach them while receiving public funding.”

“There is no evidence of any animus or hostility in this case,” she said. “Neither lower court found any such evidence. And, in fact, they held completely to the contrary.”

Justice Amy Coney Barrett asked Norton whether overt animus against religious schools was necessary, saying, “If you know that the effect of choosing that requirement will push out those with a contrary belief, how is that different?”

Norton responded that there was “zero evidence” of malicious intent by those who created the program, noting that the program created a “working group” for religious providers to get their input on how the program could work.

Further, according to Norton, the “equality mandate” the plaintiffs are challenging was part of the program before it was opened to faith-based preschools.

St. Mary Catholic Parish in Littleton and St. Bernadette Catholic Parish in Lakewood filed a complaint in August 2023 alleging that the state excluded them from the program established under the Colorado Universal Preschool Program Act because of their religious beliefs.

Other plaintiffs included the Archdiocese of Denver and the parents of preschool-aged children, while defendants included Lisa Roy, executive director of the Colorado Department of Early Childhood, and Dawn Odean, director of Colorado’s Universal Preschool Program.

A district court ruled against the parishes in June 2024, concluding that the requirement “does not exclude Plaintiffs from the UPK Program solely because of their religious status or exercise,” but instead “applies to UPK providers, regardless of their religious or non-religious character.”

The court agreed with the plaintiffs that they cannot be obligated to “provide eligible children an equal opportunity to enroll and receive preschool services regardless of religious affiliation” as a condition of participation, and it awarded them $1 in damages.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit upheld the decision in September of last year, with Circuit Judge Richard Federico writing the unanimous opinion.

“The Department did not exclude faith-based preschools from participating in UPK. Indeed, they welcomed and actively solicited their participation,” wrote Federico, a Biden appointee.

“The only relevant limitation on any preschool’s participation is the nondiscrimination requirement, which applies to all preschools regardless of whether they are religious or secular.”

In April, the Supreme Court issued an orders list agreeing to hear the case.