Supreme Court to Hear Catholic Preschools' Challenge to Colorado's Universal Pre-K Rules on Tuesday

Since Colorado launched its universal preschool program in 2023, the dispute over its nondiscrimination rule has gone through a federal district court and the 10th Circuit, both of which sided with the state. On Tuesday, Nov. 3, at about 10 a.m. ET, the Supreme Court hears arguments in St. Mary Catholic Parish v. Roy.

At issue is whether a state that funds preschool for every 4-year-old can require participating religious schools to admit children regardless of the sexual orientation or gender identity of their parents.

What Colorado's program requires

Under state law, Colorado 4-year-olds are eligible for 15 hours a week of state-funded preschool. Providers can be public or private, secular or religious. Every participating school must give all children an "equal opportunity" to enroll, regardless of the sexual orientation or gender identity of students or parents.

Becket, the religious liberty law firm representing the Catholic parties, puts the benefit at roughly $6,000 to $6,300 per child.

The Archdiocese of Denver oversees 34 Catholic preschools, according to court papers. Its policy is to admit only children from families who support Catholic beliefs, including on same-sex relationships and gender identity. The archdiocese, other Catholic entities and a Colorado family sued as the program was ramping up. They argue the mandate burdens their religious exercise.

The Catholic side

Becket says the state's rules excluded every Archdiocese of Denver preschool from the program. The firm says enrollment at archdiocesan preschools has fallen 20 percent since the program began and that two schools have closed. Those figures come from Becket and the plaintiffs, not from the state.

Nicholas Reaves, Becket senior counsel, will argue for the parents and preschools. Plaintiffs Dan and Lisa Sheley, Catholic parents of seven, say they have been forced to pay thousands out of pocket.

Erika Nagle, whose children attend St. Mary Catholic School in Littleton, told Fox News Digital that two of her children were denied about $12,000 in preschool benefits. "We are being excluded from this benefit because we are Catholic," she said. She argued that nearly every school sets admissions priorities for the community it serves, and that St. Mary prioritizes Catholic families.

Becket's argument leans on three Supreme Court decisions: Trinity Lutheran v. Comer (2017), Espinoza v. Montana and Carson v. Makin. Those rulings held that states cannot disqualify religious schools from public benefits because of their religious character or practices.

The Trump administration is backing the Catholic groups.

The state's position and the lower courts

Colorado officials, whose state is Democratic-governed, have accused the Catholic preschools of seeking legal permission to discriminate against 4-year-olds and their families while taking taxpayer dollars.

The lower courts agreed with the state's framing. The district court and the 10th Circuit found that Colorado was not targeting Catholic preschools for their faith. They held it had set a neutral, generally applicable condition for everyone who takes public money: you cannot turn families away based on who they are.

The 10th Circuit also distinguished the Colorado program from those in Trinity Lutheran, Espinoza and Carson. In its view, Colorado does not bar religious providers. They are welcome to apply if they follow the same rules as everyone else.

That distinction is the legal core of the case. The Catholic plaintiffs say it is a bar in practice. The state says it is an ordinary condition of funding.

A court that has been leaning one way

The six-justice conservative majority has taken a broad view of the Free Exercise Clause. Reuters reports the case will test whether religious conservatives can extend a winning streak in major religion and LGBT disputes.

"These cases reflect a very conservative court, following the conservative agenda on the religion clauses and LGBT issues," said Erwin Chemerinsky, dean of UC Berkeley's law school.

Michigan State law professor Frank Ravitch, who has written extensively on the religion clauses, described the shift from the court's earlier separationist approach as "literally the opposite of what the law was not that long ago."

Douglas Laycock, emeritus professor at the University of Texas and the University of Virginia, does not dispute that the archdiocese discriminates. "The question is whether that discrimination is a protected exercise of religion," he told NPR.

Laycock also notes the court ruled 8-1 in 1983 that Bob Jones University could lose its tax exemption over its ban on interracial dating. He says race has a "unique" place in American history and it is unclear whether the justices will treat sexual orientation the same way.

What comes next

Colorado's program is built on a promise of universality, and each side says the other is breaking it. The state says universal means every child gets a seat. The Catholic parents say it means every family gets the benefit, including those who choose a religious school.

A decision is expected by the end of June 2027. Whatever the court decides will shape the conditions states can attach when they extend public money to religious schools.