A coalition of Catholics in the Centennial State is bringing a religious discrimination complaint to the U.S. Supreme Court. The Catholic Archdiocese of Denver, a group of Catholic preschools, and a Catholic family in Colorado brought a petition to the nation’s highest court last week, centered on Colorado barring Catholic schools from a state education program due to the schools’ noncompliance with an LGBT nondiscrimination provision.

In 2022, Colorado voters and the state legislature established a universal preschool program (referred to in court documents as UPK), allowing families to send their children to preschool free of charge at preschools participating in the program. The UPK program automatically matches families with preschools, based on the top five preschools the family chooses. The Colorado Department of Early Childhood (CDEC) “requires UPK preschools to admit every family matched with them until their program is full, unless the preschool receives a Department-approved exemption,” the Catholics’ petition noted. “The Department grants exemptions ‘to help match preschools with specific groups of students that they are designed to serve,’” it added. The CDEC also enforces a nondiscrimination equal opportunity mandate, requiring participating schools to accept students and their families and not to discriminate on the basis of several protected qualities, including LGBT lifestyle, although the CDEC does offer exemptions for some schools.

Yet preschools at St. Mary Catholic Parish in Littleton and St. Bernadette Catholic Parish in Lakewood were excluded from participating in the program due to their religious standards. The Archdiocese of Denver, which operates 34 Catholic preschools, including St. Mary and St. Bernadette, requires school administrators, teachers, staff, and parents to sign a statement affirming their support for the moral teachings of the Catholic Church and their commitment to living according to those moral teachings, including moral teachings on gender and sexuality. “This alignment between what the school teaches and what parents want for their children is ‘vital’ because Archdiocesan ‘schools do not function in [their] mission to help bring children to Jesus Christ if not for bringing them to Jesus Christ through your family,’” the petition clarified. “If a family actively opposes the teachings of the Catholic Church and lives as ‘a counter-witness to Catholic doctrine or morals,’ their participation in the school community would directly impair the ability of the school to form its students in the faith.”

The Catholic moral standards required by schools affiliated with the Archdiocese resulted in St. Mary and St. Bernadette being denied participation in UPK, despite the fact that the CDEC provides numerous exemptions from its equal opportunity mandate for other preschools. In 2023, the Archdiocese requested an exemption “that would allow

its preschools to admit only families who agree with the Catholic Church’s teachings, including on gender and sexuality,” the Catholics’ petition recounted. “The request explained that enforcing the Mandate against faith-based preschools’ sincere religious exercise ‘will severely restrict the ability of faith-based providers to participate in the program without compromising their sincerely held religious beliefs.’”

That request was denied. The Catholics filed a lawsuit in federal court, arguing that the CDEC’s decision was in violation of the First Amendment. Both the U.S. District Court for the District of Colorado and the U.S. Court of Appeals for the Fifth Circuit concluded that the CDEC did not violate the First Amendment rights of the Catholics, prompting the coalition to appeal to the Supreme Court.

Colorado “permits numerous exemptions from [the equal opportunity mandate] requirement, both categorical and discretionary, allowing preschools to admit only ‘children of color,’ ‘gender-nonconforming children,’ ‘the LGBTQ community,’ low-income families, and children with disabilities,” the Catholics pointed out in their petition. “But Colorado excludes Catholic preschools because they admit only families who support Catholic beliefs, including on sex and gender.”

The case, the Catholics argued, presents pressing constitutional questions that the Supreme Court must resolve, addressing differing conclusions reached on First Amendment religious liberty and nondiscrimination issues by different circuit courts. “The Tenth Circuit upheld Colorado’s decision to exclude Catholic preschools. Applying Employment Division v. Smith, it held that Colorado’s secular exemptions and discretion did not undermine general applicability,” the Catholics observed in their petition. “In so doing, the court sided with the minority position in an entrenched and acknowledged 7-4 split over what kinds of exemptions and discretion undermine general applicability. The court also eschewed Carson v. Makin, concluding that its rule was inapplicable because Colorado’s exclusion was not ‘on the explicit basis’ of religion.”

“Free Exercise Clause jurisprudence is of two minds. On the one hand, there is the rule of Employment Division v. Smith, which transformed free exercise doctrine by shifting the judicial focus from religious exercise and the real-world burdens government imposes on it to the abstract qualities of the law imposing the burden,” the petition argued. “On the other hand, there are separate lines of free exercise precedent that stand entirely outside the rule of Smith. This Court’s church autonomy decisions in cases like Hosanna-Tabor have never been subject to Smith,” the Catholics continued. “The decision [of the lower courts] exacerbates existing conflicts and confusion in the lower courts over both aspects of current free exercise jurisprudence.”

“Both the conflict over general applicability under Smith and the confusion over Carson’s relationship to Smith can only be resolved by this Court. And each is sufficient grounds for this Court to grant review,” the Catholics argued. “But on a deeper level, the Court will never be able to put Free Exercise Clause jurisprudence on a firm foundation until it reckons with Smith itself,” they continued. The Catholics also criticized the Supreme Court’s 2015 ruling in Obergefell v. Hodges, which was touted at the time as a non-invasive means of instituting federal protections for same-sex marriage. “This Court promised in Obergefell that religious groups would be protected when they dissent from secular orthodoxies about marriage and sexuality. 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.”

“Our preschools exist to help parents who want an education rooted in the Catholic faith for their children,” said Scott Elmer, Chief Mission Officer for the Archdiocese of Denver, in a statement. “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.”

“Colorado is picking winners and losers based on the content of their religious beliefs,” said Nick Reaves, senior counsel at the Becket Fund for Religious Liberty, the attorneys representing the Catholics in this case. “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.”

According to Becket, the Supreme Court “is likely to consider taking the case in early 2026.”