The Supreme Court agreed to hear a challenge by the Archdiocese of Denver and two parish preschools that were excluded from Colorado’s universal preschool program, the parties said.
The plaintiffs include St. Mary Catholic Parish in Littleton, St. Bernadette Catholic Parish in Lakewood, Daniel Sheley and Lisa Sheley, and the Archdiocese of Denver, and they are represented by the Becket Fund for Religious Liberty, according to filings and statements.
Colorado’s program pays for families to send children to a public or private preschool of their choice and offers families 15 free hours at a qualifying school, as described in court documents.
The state refused to admit the Catholic preschools because those schools require enrolling families to affirm Catholic teachings on sex and gender, a condition that Colorado officials said conflicts with the program’s equal opportunity and nondiscrimination rules covering sexual orientation and gender identity.
According to the Becket Fund, Colorado’s decision affected more than 1,500 children attending about 30 Catholic preschools and parish preschool enrollment in the Denver archdiocese fell by about 20 percent since the program began.
Legal Questions And Doctrinal Context
The Supreme Court will decide whether Colorado’s participation requirements are constitutional under precedents that govern free exercise claims, the filings show.
Central legal issues include whether a claimant must show that a law contains unfettered discretion or categorical secular exemptions to prove it lacks general applicability under Employment Division v. Smith, and whether the court’s recent decisions like Carson v. Makin affect Smith when a program does not explicitly exclude religious institutions.
The court declined to review a broader question about overruling Employment Division v. Smith, so justices will focus on narrower issues raised by the petitioners, according to the court’s docket statement.
The 10th Circuit Court of Appeals previously rejected the archdiocese’s First Amendment claims, finding that Colorado was not barring funds for religious education but was uniformly applying nondiscrimination conditions, the appeals court wrote in its opinion.
Petitioners plan to stress that Colorado allows some secular preschools to limit admissions for characteristics such as gender identity or race, and they argue that this creates unequal treatment, court papers say.
Colorado defends the program through the state Department of Early Childhood and its executive director Lisa Roy, who argues the state may refuse public funding to providers that would turn away preschoolers because of protected characteristics, the state’s brief asserts.
Both sides cite prior Supreme Court cases including Fulton v. City of Philadelphia, Hosanna Tabor v. EEOC, and Obergefell v. Hodges as background for competing views on how the free exercise clause and anti-discrimination rules should interact, according to briefs and reporting.
