The Supreme Court’s conservative justices appeared sympathetic Tuesday to Catholic preschools challenging Colorado’s decision to exclude them from a publicly funded preschool program. The schools argue the state is infringing on their religious rights.
The dispute centers on whether private schools that do not admit children from LGBTQ+ families can be barred from a public benefit under state anti-discrimination rules.
During roughly two hours of arguments, the justices weighed religious freedom against Colorado’s goal of ensuring gay and lesbian parents have equal access to publicly supported preschool options.
Justice Sonia Sotomayor questioned whether families with same-sex parents would want to send their children to schools whose teachings oppose same-sex relationships. Still, she said, that decision should belong to families, not the schools. She characterized the plaintiffs’ position as asking the state to provide public money while allowing them to turn away certain children.
Justice Brett Kavanaugh urged Colorado to find a way to accommodate both religious schools and LGBTQ+ families. With about 2,000 preschools in the state, he suggested, parents could find a suitable school without requiring religious institutions to set aside their beliefs. He also questioned whether the state was creating a conflict that could have been avoided.
Colorado voters approved the Universal Preschool Program in 2020. It provides public funding to participating schools, which must give eligible children equal access to preschool services regardless of factors including race, religion, sexual orientation, gender identity, income, housing status or disability.
Two Catholic parishes sued, saying the requirement conflicts with their religious beliefs about marriage and gender identity. The archdiocese operates 34 preschools and has a policy of admitting children only from families that support Catholic teachings, including those concerning same-sex relationships.
The parishes are seeking an exemption from the state’s rules, arguing that excluding them from the program amounts to religious discrimination under the First Amendment. The Trump administration has expressed support for their case.
Colorado says the conditions are neutral and apply to every preschool receiving public funds. The program provides up to $6,300 a year per child for as many as 15 hours of preschool each week, funded through a tobacco tax. State officials told the justices that religious schools may participate, provided they follow the same anti-discrimination rules as other publicly funded providers.
The court is also considering whether to limit a precedent, now 36 years old, holding that religious practices do not automatically qualify for exemptions from laws that apply broadly.
The First Amendment bars Congress from establishing religion or preventing its free exercise. In earlier decades, the court’s religious-rights cases often focused on maintaining separation between church and state. In recent years, the court’s conservative majority, with Justice Samuel Alito among its leading voices, has more often sided with religious institutions making free-exercise claims.
The justices have previously ruled in favor of a Colorado baker, a mental health counselor and a website developer who challenged state anti-discrimination policies.
Tuesday’s arguments appeared to reflect the court’s ideological divide. Conservative justices pressed the state on whether its funding conditions effectively discriminate against Catholic schools by requiring them to accept terms they cannot follow. Justice Amy Coney Barrett asked how that differed from explicitly barring the schools.
Justice Elena Kagan said the court’s earlier decisions established that religious institutions should not be treated differently. But, she asked, was the issue here whether the state must treat them more favorably?
Chief Justice John Roberts questioned both sides, and his vote could be pivotal. He noted that earlier cases involved laws that explicitly discriminated against religious schools, unlike Colorado’s policy, which the state says applies equally to religious and secular providers.
The case was brought by several plaintiffs, including St. Mary Catholic School. Erika Nagle, whose children attend the school in Littleton, said two of them were denied access to the state’s preschool funding. Her family has had to take on additional education costs, she said, and she believes the state is excluding Catholic families despite its stated commitment to inclusion.
Nagle also said two preschools in the archdiocese had closed. She argued that the program’s financial support pressures families to give up the Catholic education they want for their children.
The plaintiffs’ attorney, from the Becket Fund for Religious Liberty, told the court that the policy has had serious effects: enrollment at archdiocesan preschools has dropped by 20%, and two schools have closed.
Colorado, however, said religious organizations continue to participate in the program, including Catholic Charities, at least three dozen Christian schools, one Muslim school and three Jewish schools. State attorney Helen Norton said religious preschools are welcome, as long as they meet the same requirements as every other publicly funded provider.
The case, St. Mary Catholic Parish v. Roy (25-581), is expected to be decided by next spring.
