Christian preschools appeal to Supreme Court over pre-K program

The Archdiocese of Denver, a group of Catholic preschools and a Catholic family in Colorado have asked the U.S. Supreme Court to determine if Colorado’s Universal Preschool Program (UPK) discriminated against them for not abiding by an LGBT nondiscrimination statement.

In St. Mary Catholic Parish v. Roy, a federal lawsuit first filed in 2023, St. Mary Catholic Parish in Littleton and St. Bernadette Catholic Parish in Lakewood alleged that the state excluded them because of their religious beliefs from participating in the Colorado Universal Preschool Program Act, which was passed in 2022 to allow students to attend pre-K free of charge at participating schools.

The parishes claimed that they were barred from the program because the Colorado Department of Early Childhood and Colorado’s Universal Preschool Program took issue with their preference for admitting Catholic families and maintaining religious expectations of their staff, including in matters of sexuality.

The lawsuit alleged that the state violated the free exercise and the free speech clauses of the First Amendment to the U.S. Constitution by denying the archdiocese’s 36 preschools admission to the pre-K program because of its religious beliefs regarding LGBT families and employees.

“Specifically, the Department is purporting to require all preschool providers to accept any applicant without regard to a student or family’s religion, sexual orientation, or gender identity, and to prohibit schools from ‘discriminat[ing] against any person’ on the same bases,” the lawsuit read.

The LGBT nondiscrimination agreement at the center of the lawsuit requires participants in the UPK program to “provide eligible children an equal opportunity to enroll and receive preschool education regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability, as such characteristics and circumstances apply to the child or the child’s family.”

In September, the three-judge panel on the 10th U.S. Circuit Court of Appeals unanimously upheld the state’s exclusion, finding that “nondiscrimination requirement exists in harmony with the First Amendment and does not violate the Parish Preschools’ First Amendment rights.”

“This Court promised in [its 2015 ruling legalizing same-sex marriage nationwide] that religious groups would be protected when they dissent from secular orthodoxies about marriage and sexuality,” the group’s appeal to the U.S. Supreme Court argues. “The Free Exercise Clause simply cannot do that important work — which this Court has described as ‘at the heart of our pluralistic society’ — if it can be so easily evaded.”

The American Civil Liberties Union of Colorado joined other organizations in filing an amicus brief in the case, arguing that “there is no Free Exercise Clause violation when a governmental body conditions a public benefit on a religion-neutral and generally applicable requirement.”

“The plaintiff religious schools are merely being asked to follow the same antidiscrimination rules that apply to every other school in the Program — rules that are grounded in secular, not religious, concerns,” ACLU Colorado said in summary of the case.

Legal counsel for the plaintiffs argues that the state’s exclusion of the parishes is effectively punishment for their religious beliefs, according to a Friday statement from the Washington, D.C.-based Becket Fund for Religious Liberty. The nonprofit, which specializes in religious discrimination cases, noted that enrollment at Catholic preschools in Colorado has declined since the rollout of the UPK program.

“Colorado is picking winners and losers based on the content of their religious beliefs,” said Nick Reaves, senior counsel at Becket. “That sort of religious discrimination flies in the face of our nation’s traditions and decades of Supreme Court rulings. We’re asking the Court to step in and make sure ‘universal’ preschool really is universal.”

The Christian Post has reached out to the Colorado Department of Early Childhood for comment and will update this story if a response is received.

Scott Elmer, who serves as Chief Mission Officer for the Archdiocese of Denver, said in a statement that Catholic families in Colorado deserve to benefit from the UPK program’s 15 hours of free preschool per week at the school of their choice.

“Our preschools exist to help parents who want an education rooted in the Catholic faith for their children,” Elmer said. “All we ask is for the ability to offer families who choose a Catholic education the same access to free preschool services that’s available at thousands of other preschools across Colorado.”

Becket Law expects the U.S. Supreme Court to decide whether to take the case early next year.