The Sutherland Institute, a Utah-based conservative think tank, filed a friend-of-the-court brief to the U.S. Supreme Court in a case debating religious education institutions and Colorado’s state rights.
The case, St. Mary Catholic Parish v. Lisa Roy, centers on Colorado’s universal preschool program. The state program offers universal education to every Colorado child in the year before kindergarten and provides funding for preschool providers, but has threatened to exclude Catholic preschools for failing to comply with nondiscrimination clauses.
“The Supreme Court has a significant opportunity to make clear that states cannot avoid the constitutional protection of religious exercise by imposing regulations on public spending programs that burden parents as they seek to exercise their responsibility to direct the education of their children,” William C. Duncan, Constitutional Law and Religious Freedom Fellow at Sutherland, said in a statement via email.
He added, “Parents have a right to bring their children up in their faith and moral convictions. Governments cannot foreclose educational choices of parents for religious reasons by attaching variable strings to the programs they create.”
Case background
In 2023, the Archdiocese of Denver advised its educational institutions not to enroll in the state preschool program “so that they would not have to agree to the nondiscrimination requirement,” but did advise “several preschools affiliated with Catholic Charities and aimed at low-income families to participate in” the program.
When the archdiocese and other faith groups requested an exemption from enforcement of certain anti-discrimination requirements in the state program that go against the Catholic faith, regarding gender identity and sexuality, Lisa Roy, executive director of the Department of Early Childhood, informed the archdiocese that one could not be granted, and that the program is set in law.
Thus, a lawsuit ensued.
The United States District Court for the District of Colorado found that the nondiscrimination requirements were constitutional, essentially siding with Colorado, and upheld the nondiscrimination rule. It kicked the archdiocese out of the case for lack of standing, and granted only a small unchallenged religious-affiliation exception.
The plaintiffs appealed the decision, and the U.S. Court of Appeals for the 10th Circuit affirmed the district court’s decision.
In its amicus brief urging the Supreme Court to take up the case, the Sutherland Institute contended that most private schools in Colorado are religious and align their curriculum with their faith.
“The policy enforces,” they argue, “preference for secular private schools and schools whose missions and practices align with the State’s preferred beliefs about gender and sexuality. It also interferes with the ability of parents and families to exercise their responsibility, motivated by their faith, to direct their children’s education by removing from them an opportunity to receive otherwise publicly available financial assistance necessary for many to access private schooling consistent with their religious beliefs about gender and sexuality.”