One Colorado father pays for Catholic preschool himself, even as his taxes help fund preschool for other families. One of his children has spina bifida, and the family remains in Colorado because its Medicaid coverage meets her needs better than coverage elsewhere. An additional $6,000, he says, would make a real difference in caring for her.
Another parent works for a lumber company. Her husband paints houses, but work tends to slow during the winter. They have six children and are expecting a seventh. She once thought Catholic school was only for wealthy families.
A mother of three children enrolled in a Denver Catholic school started a florist business to help cover tuition. She couldn’t afford the school’s preschool for her youngest, who now attends a Lutheran preschool through Colorado’s state program. “I’m choosing just a faith,” she says, “and here I’m being punished for that.”
Another mother took a lower-paying job at her children’s parish school in exchange for a tuition discount. She has also seen families leave because they can’t manage the cost of pre-K.
I filed an amicus brief with the Supreme Court on behalf of these Catholic families in St. Mary Catholic Parish v. Roy, which the court is scheduled to hear on Nov. 3. Dan and Lisa Sheley, who joined the Archdiocese of Denver and two parishes in challenging Colorado, know the same financial strain. They have seven children, five of them at St. Mary’s, and have paid thousands of dollars themselves for faith-based preschool that the state won’t help cover.
Colorado’s universal preschool program was meant to support families like these. But a condition for taking part keeps Catholic schools out. Schools must promise “equal opportunity,” a requirement that includes protections related to sexual orientation and gender identity. Catholic schools say they cannot accept that condition without setting aside church teachings on marriage, sexuality and identity. The state doesn’t need to name Catholic schools in its rules; it only needs a requirement they can’t meet.
This kind of exclusion has a long history in the United States. In 1875, amid widespread anti-Catholic prejudice, House Speaker James G. Blaine proposed a constitutional amendment barring public funds from “sectarian” schools. Catholic immigrants were the intended target. Public schools at the time were often Protestant in character, with prayers, hymns and lessons drawn from the King James Bible.
Catholic families who wanted their children educated in their faith built schools of their own. Blaine’s amendment passed the House by a wide margin but narrowly failed in the Senate. States later adopted similar provisions, and roughly three dozen wrote versions into their constitutions. They didn’t explicitly say “Catholic.” As Justice Clarence Thomas noted in Mitchell v. Helms in 2000, “sectarian” was understood as code for Catholic.
Colorado’s preschool program offers eligible four-year-olds a benefit worth about $6,000 a year, which families can use at a school they choose. But Catholic schools say the price of participation is agreeing to the equal-opportunity condition, so they are excluded.
In recent years, the Supreme Court has pushed back against the legacy of Blaine amendments. In Trinity Lutheran (2017), Espinoza (2020) and Carson (2022), the court ruled that states cannot deny a public benefit to schools because they are religious or practice their faith. Colorado’s requirement, though framed in contemporary terms, has a similar effect: schools whose religious beliefs conflict with the state’s expectations are left out.
The rules also allow other providers to serve limited groups, including children with disabilities, low-income children, children of color, gender-nonconforming children and LGBTQ+ children. Officials can approve additional exceptions individually. Catholic schools, however, have been given no comparable flexibility. The lawmakers who created the program expected faith-based preschools to participate.
The effects are visible. About 1,500 children at 30 schools have been excluded, Catholic preschool enrollment has fallen by roughly 20%, and two preschools have closed.
The families’ request to the Supreme Court is limited: Colorado already accommodates providers whose missions lead them to serve particular communities, and it can accommodate Catholic schools too.
In Masterpiece Cakeshop (2018), 303 Creative (2023) and Chiles (2026), the Supreme Court criticized Colorado for failing to respect religious or expressive freedom. The justices should make clear once more that constitutional protections do not disappear when they conflict with a state’s preferred ideology. If a state offers families assistance for private education, it should not shut out Catholic schools for remaining Catholic. Blaine amendments left a troubling mark on American law. They should not return under another name.
