Conservative Supreme Court justices questioned whether Colorado can deny religious preschools access to taxpayer-funded education programs because their admissions policies reflect Catholic teachings on marriage, sexuality and gender identity.
By yourNEWS Media Newsroom
WASHINGTON — The U.S. Supreme Court appeared receptive Tuesday, Nov. 3, to arguments from Catholic preschools challenging Colorado’s requirement that schools receiving public education funding enroll children regardless of their or their parents’ sexual orientation or gender identity, raising the possibility of another significant ruling expanding constitutional protections for religious institutions.
The case, St. Mary Catholic Parish v. Roy, involves the Archdiocese of Denver, two Catholic parishes and parents who contend that Colorado violated the First Amendment by excluding their preschools from the state’s universal preschool program because they require participating families to support Catholic teachings on marriage, sexuality and biological sex. The Trump administration supports the schools, arguing that government benefits cannot be conditioned on abandoning sincerely held religious practices.
According to Reuters’ coverage of Tuesday’s arguments, several conservative justices questioned whether Colorado’s policy effectively discriminates against religious institutions by imposing requirements those schools cannot accept without compromising their beliefs.
Justice Amy Coney Barrett challenged Colorado attorney Helen Norton to explain why attaching such conditions to a government benefit should be treated differently from directly excluding religious schools.
“Explain what the difference is between (explicit exclusion of religious schools) and then choosing to impose a condition that you know that those schools will be unable to agree to?” Barrett asked.
Chief Justice John Roberts also questioned whether Colorado’s position conflicted with the Supreme Court’s 2022 decision in Carson v. Makin, which held that Maine could not exclude religious schools from a private-school tuition assistance program simply because they provided religious education.
“I think the effect of the law in Carson is pretty much the same as the effect of the law here. And we said in Carson that it turned on the substance of Free Exercise protections,” Roberts said. “And I wonder in what way you think this is different than Carson?”
The dispute centers on Colorado’s universal preschool program, which provides up to 15 hours of publicly funded preschool each week for eligible children during the year before kindergarten. The program was established following voter approval of a 2020 ballot initiative and allows parents to select participating public, private or religious schools.
Participating institutions must agree to provide equal enrollment opportunities regardless of several protected characteristics, including race, religion, sexual orientation and gender identity. Catholic schools are eligible to participate if they accept those conditions, but the plaintiffs maintain that their religious mission prevents them from agreeing to the requirements concerning sexual orientation and gender identity.
The Archdiocese of Denver and its affiliated schools argue that Colorado permits other participating preschools to establish enrollment preferences involving family income, disability status, siblings already attending the school and religious congregation membership. They contend that allowing those preferences while refusing religious accommodations creates unequal treatment under the First Amendment’s Free Exercise Clause.
Nicholas Reaves, representing the Catholic institutions, told the justices that religious instruction is fundamental to the schools’ purpose.
“To do this, they ask all families who enroll to be open to and supportive of the Church’s teachings,” Reaves said. “Because of this sincere religious exercise, the state has denied Colorado families the ability to use universal preschool funding at Catholic schools.”
The archdiocese oversees 34 Catholic preschools, and the plaintiffs say their enrollment has declined by approximately 20% since Colorado’s program began operating. They argue that excluding their institutions from the taxpayer-funded initiative places Catholic families at a financial disadvantage because parents must either pay for their preferred religious preschool or select another participating provider.
Colorado officials dispute that characterization, maintaining that the state does not exclude religious schools because of their faith. Instead, the state argues that every participating institution must follow the same nondiscrimination requirements when accepting public money.
“Colorado welcomes religious preschools to (the program). 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 justices.
The state also maintains that Catholic preschools remain free to teach their religious beliefs, including doctrines concerning marriage and sexuality, while participating in the program. According to Colorado’s attorneys, the dispute concerns whether publicly funded schools can deny enrollment based on protected characteristics rather than whether religious education itself is permissible.
“Under this program, 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,” Norton said.
The court’s liberal justices challenged the argument that previous decisions protecting religious schools’ access to public funds necessarily require Colorado to waive conditions imposed on every participating institution.
Justice Elena Kagan distinguished between prohibiting discrimination against religious institutions and requiring a state to grant religious organizations exceptions unavailable to other providers.
“That’s not the principle that’s at issue here,” Kagan said. “The principle at issue here is: Do you have to treat them better?”
The legal dispute also involves the Supreme Court’s 1990 decision in Employment Division v. Smith, which generally permits neutral, broadly applicable laws that incidentally burden religious exercise. Colorado maintains that its preschool requirements satisfy that standard, while the Catholic plaintiffs argue that the state’s system of enrollment preferences undermines its claim that the rules are uniformly applicable.
A federal district court previously ruled against the Catholic institutions, and the U.S. Court of Appeals for the 10th Circuit upheld that decision in September 2025. The appeals court concluded that Colorado’s nondiscrimination requirements were compatible with the First Amendment and that the state’s permitted enrollment preferences did not require an additional religious exemption.
The Supreme Court subsequently agreed to review the case, adding another religious liberty dispute to a series of decisions concerning government funding, religious institutions and protections against discrimination. As The Associated Press reported, the court has previously ruled in favor of religious schools challenging exclusions from publicly funded education programs in Maine and Montana, although the justices divided evenly in a separate 2025 case involving a proposed Catholic charter school in Oklahoma.
The ACLU of Colorado and other civil rights organizations have supported the state’s position, arguing that religious freedom does not require governments to finance institutions that refuse to comply with generally applicable nondiscrimination requirements. Supporters of the Catholic schools counter that public education benefits should remain available to families choosing religious education without forcing participating institutions to alter their admissions practices.
The justices did not issue a ruling Tuesday, and questions during oral arguments do not necessarily establish how individual members of the court will vote. A decision is expected by the end of June 2027.
The outcome could establish an important precedent for religious schools and other faith-based organizations seeking access to government programs while maintaining policies that conflict with state nondiscrimination requirements. A ruling favoring the Catholic preschools could expand the circumstances in which religious institutions qualify for exemptions, while a decision supporting Colorado would reinforce states’ authority to attach equal-access conditions to publicly funded services.
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