Colorado says the schools may join under equal-opportunity terms
Two Catholic preschools in Colorado say the state shut them out of a 2023 funding program that provides 15 hours per week of state-funded preschool, and they argue they should be admitted to the state’s free education system despite their rejection of children with LGBTQ+ parents. Colorado says the schools “remain welcome to participate in” the program, but only if they agree to the same equal-opportunity requirements that apply to all other publicly funded preschools — public and private, secular and religious. To join, Colorado says, the schools must consent to “provide eligible children an equal opportunity to enroll and receive preschool services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability.”
The plaintiffs argue that making funding contingent on accepting that agreement amounts to unlawful religious discrimination under the First Amendment, which guarantees religious freedoms. The case, St Mary Catholic Parish v Roy, is a clash between religious freedom and nondiscrimination law and has been making its way up the court system, and a lower appeals court ruled for Colorado while acknowledging that the Supreme Court has previously held that states “cannot categorically withhold those funds from religious institutions.” The lower court said that precedent did not control because Colorado “did not exclude” religious preschools from its funding program and had “welcomed and actively solicited their participation” — leaving the schools facing enrollment conditions rather than an outright prohibition on receiving state funding.
Colorado’s rule draws opposition from religious-rights advocates and Catholic groups. The archdiocese says the state allows participating preschools “to discriminate in favor of LGBTQ families and other groups,” such as “gender-nonconforming children,” “children of color,” or members of “the LGBTQ community.” Nicholas Reaves, counsel at the Becket Fund for Religious Liberty, a firm that litigates religious liberty cases, told the National Catholic Reporter that Colorado had “denied families … the ability to use that funding at Catholic preschools, simply because those preschools have religious beliefs the state doesn’t like.” In an amicus brief submitted to the court, the US Conference of Catholic Bishops argued that Colorado had disqualified the preschools “solely because of their adherence to Catholic doctrine,” said the lower court’s decision “will embolden other states and municipalities to discriminate against religious adherents’ rights by enacting ostensibly neutral statutes that discriminate in fact,” and warned that if allowed to stand, “the resulting harm to the nation’s social support infrastructure would be immense.”
The US Supreme Court will hear arguments Tuesday in St Mary Catholic Parish v Roy. The unresolved issue is whether Colorado can condition participation in a public preschool funding program on equal-opportunity enrollment rules when the religious preschools decline to enroll children with LGBTQ+ parents. The Guardian said a decision could reshape the relationship between religious freedom and nondiscrimination laws in the US.