Supreme Court Weighs Catholic Preschools' Bid to Skip Colorado Antidiscrimination Rule

The Supreme Court takes up a fight Tuesday over whether Catholic preschools can take Colorado taxpayer dollars while turning away children based on sexual orientation or gender identity. The justices hear oral arguments in a case brought by the Archdiocese of Denver and other Catholic plaintiffs, who say the state's antidiscrimination rule tramples their First Amendment rights.

Colorado's universal preschool program, greenlit by voters in a 2020 referendum, hands parents public money to send kids to the preschool of their choice. But state law blocks any provider that refuses admission over a child's or parent's sexual orientation or gender identity. Catholic doctrine doesn't recognize same-sex relationships or transgender status, so the plaintiffs argue the condition pushes them out entirely.

The archdiocese's lawyers at Becket call the case open-and-shut, saying Colorado deliberately shut out Catholic preschools purely because of their religious practice, according to court papers. Trump administration lawyers back that position. Colorado Attorney General Phil Weiser, a Democrat, counters that religious schools are free to join the program as long as they play by the same antidiscrimination rules everyone else does — and that the Catholic preschools want the funding without the strings.

The challengers also point to flexibility the state already allows, like letting programs prioritize kids with disabilities or from low-income families. Those carve-outs clash with a strict equal access standard, they argue. Colorado's lawyers respond that such preferences actually serve the state's interest in keeping disadvantaged children from being shut out.

The other plaintiffs are St. Mary Catholic Parish in Littleton, Bernadette Catholic Parish in Lakewood, and parishioners Daniel and Lisa Sheley, who have seven children. The Sheleys say choosing their church's preschool cost them more than $12,000 in tuition assistance. The archdiocese runs 34 preschools across the state. Preschools run by Catholic Charities, which answers to a different mission and doesn't require Catholic teaching compliance, already take part in the program.

At the heart of the argument is a 1990 precedent, Employment Division v. Smith, which held that laws applying equally to everyone don't need to carve out religious exemptions. The court has chipped away at that ruling without overturning it — including a 2021 decision letting a Catholic group stay in Philadelphia's foster care program despite its opposition to same-sex couples. With a 6-3 conservative majority that has repeatedly sided with Christian plaintiffs, Colorado's rule now sits in the crosshairs. The plaintiffs sued in 2023, lost in the lower courts, and are now asking the justices for the final word.