Article By Michael Gryboski
The U.S. Supreme Court is set to decide whether a pair of Catholic schools were wrongly excluded from a Colorado preschool program over their theological views on LGBT issues.
In an orders list released Monday, the Supreme Court granted certiorari, or agreed to hear an appeal, in the case of St. Mary Catholic Parish et al v. Lisa Roy et al., namely on when the government can exclude religious entities from public programs.
In August 2023, St. Mary Catholic Parish in Littleton and St. Bernadette Catholic Parish in Lakewood filed a complaint alleging that the state excluded them from participating in the Colorado Universal Preschool Program Act due to their religious beliefs.
The two parishes have a preference for admitting Catholic families to their programs and they require their staff to adhere to Catholic teaching, including on sexual ethics and gender identity.
In addition to the two churches, other plaintiffs included the Catholic Archdiocese of Denver and the parents of preschool-aged children. Named defendants included Lisa Roy, executive director of the Colorado Department of Early Childhood, and Dawn Odean, director of Colorado’s Universal Preschool Program.
The Colorado government program provides a minimum of 15 hours of free preschool each week for an eligible child and is funded by both private and public money.
At specific issue was the equal opportunity requirement of the Universal Preschool Program, which required participating preschools to “provide eligible children an equal opportunity to enroll and receive services 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 June 2024, a district court ruled against the plaintiffs, concluding in part that the requirement “does not exclude Plaintiffs from the UPK Program solely because of their religious status or exercise,” but rather “applies to UPK providers, regardless of their religious or non-religious character.”
“The purpose of the requirement is not to invade religious freedom but to further the implementation of a strongly embraced public value,” the district court ruled, adding that “the equal-opportunity requirement is neutral and has been applied to Plaintiffs in a neutral manner.”
“Nothing in the text of the statutory equal-opportunity requirement, or its inclusion in the UPK Agreement, indicates that religious discrimination is its object. Plaintiffs do not argue the contrary, nor do they present evidence that the requirement was adopted with the object of targeting religious beliefs or conduct.”
However, the district court agreed with the plaintiffs that they should not be forced to “provide eligible children an equal opportunity to enroll and receive preschool services regardless of religious affiliation” as a condition for participation and granted them $1 in damages.
Last September, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit unanimously upheld the lower court decision, with Circuit Judge Richard Federico, a Biden appointee, authoring the opinion.
Federico believed that past Supreme Court decisions that require states to grant religious entities access to public programs differed from this case, as the preschool program already allowed faith-based entities to participate.
“The Department did not exclude faith-based preschools from participating in UPK. Indeed, they welcomed and actively solicited their participation,” wrote Federico. “The only relevant limitation on any preschool’s participation is the nondiscrimination requirement, which applies to all preschools regardless of whether they are religious or secular.”
In November, the plaintiffs filed an appeal with the Supreme Court, represented by the Becket Fund, a prominent legal group specializing in religious liberty cases.
“Colorado is picking winners and losers based on the content of their religious beliefs,” said Nick Reaves, senior counsel at Becket, in a statement last year.
“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.”
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