The U.S. Supreme Court on Monday took up a new religious liberty case, agreeing to hear arguments about whether the state of Colorado can exempt Christian organizations from its statewide universal preschool program.
The justices agreed to hear the two Catholic parishes’ challenge to Colorado’s decision to bar them from the state’s universal preschool program, which includes 15 hours of free instruction a week.
The state says the Catholic preschools cannot take part in the program because of the nondiscrimination clause that mandates participating schools cannot ban children of same-sex couples or children based on their sexual orientation and gender identity.
Arguments in the case, St. Mary Catholic Parish v. Roy, will take place during the Supreme Court’s next term, which begins in October.
In 2023, the Archdiocese of Denver, which oversees 34 preschools, said it was excluded from the statewide program and its funding because it would not comply with the nondiscrimination clause.
In their order saying they would take up the case, the justices said they would not consider overturning Employment Division v. Smith, a 1990 decision that said exemptions for religious organizations are not required when a law is applied in a neutral and broad way.
Still, the justices agreed to add the case to the docket and the outcome in the case could narrow the landmark 1990 decision, particularly as some of the court’s more conservative justices have spoken about wanting to revisit it.
Case background
In 2020, voters approved the preschool program as part of a statewide referendum that provided taxpayer dollars for parents to send their kids to their preferred preschool.
In 2023, the archdiocese told its educational institutions not to enroll in the state preschool program so they would “not have to agree to the nondiscrimination requirement.”
The archdiocese and other groups later asked the state if they could be exempt from the anti-discrimination requirements in the law and still receive the state funded program to participate in universal preschool. The state informed the groups that an exemption would not be granted and the requirements were final and set in law.
The U.S. District Court for the District of Colorado found that the state’s nondiscrimination requirements were constitutional and upheld the requirements. The plaintiffs appealed the decision and the U.S. Court of Appeals for the 10th Circuit upheld the district court’s ruling, setting the stage for the plaintiffs to bring the case to the Supreme Court if the justices agreed.
The Sutherland Institute, a Utah-based conservative think tank. filed a friend-of-the-court brief to the Supreme Court, arguing that most private schools in Colorado are religious and align their curriculum with their faith.
The Becket Fund for Religious Liberty is also in support of the archdiocese and Catholic families that have to “pay thousands of dollars out of pocket each year” to send their children to parish preschools. Becket argues that enrollment in Catholic preschools has decreased “unsurprisingly,” even at schools that served low-income families.
The Trump administration also filed a brief in support of the Catholic preschools.
The state may have an uphill battle to prove that the Catholic groups should be barred from the program. In recent rulings, the court has consistently ruled religious groups don’t need to abandon their deeply held beliefs to participate in publicly-funded programs.
Last month, the Supreme Court ruled that states cannot ban “conversion therapy.” The 8-1 decision ruled that the First Amendment prohibits states from limiting what therapists can discuss with their clients. The case, Chiles v. Salazar, stemmed from a Colorado definition of conversion therapy.