Supreme Court takes up Catholic preschools' challenge to the equal-opportunity rule in Colorado's universal preschool program
Two Denver-area parishes and the Archdiocese of Denver say the First Amendment entitles them to an exemption so they can join the state-funded program without admitting children of LGBTQ parents. Colorado says every participating preschool, religious or not, follows the same rule.
Washington. The U.S. Supreme Court set Tuesday, Nov. 3, for arguments in St. Mary Catholic Parish v. Roy, a challenge by Catholic preschools to the conditions Colorado attaches to its universal preschool program. The case asks when a state that pays private and religious providers to deliver a public program may hold them to a nondiscrimination rule their faith does not accept.
Colorado's program offers every 4-year-old in the state up to 15 hours of free preschool a week, delivered by public schools and by private preschools, religious ones included. According to the state's brief, nearly 2,000 providers took part in its first year. Each must agree to give eligible children "an equal opportunity to enroll and receive preschool services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability," as those apply to the child or the family.
Who is suing, and why
The plaintiffs are St. Mary Catholic Parish in Littleton, St. Bernadette Catholic Parish in Lakewood, the Archdiocese of Denver and two Littleton parents, Daniel and Lisa Sheley. The parishes require enrolling families to support the church's teachings on sex and marriage and treat children according to their biological sex, so they cannot sign the state's agreement. They argue that Colorado excludes them because of their religious exercise, which under the court's 2022 decision in Carson v. Makin would face the strictest review. They also say the program is not generally applicable, because it lets other preschools favor children from low-income families, children with disabilities and particular communities.
In their brief, the challengers say enrollment in their preschools has fallen almost 20 percent, that St. Bernadette closed its preschool, and that the Sheleys have been denied more than $12,000 in tuition assistance.
“Petitioners remain welcome to participate in UPK, subject to the same equal-opportunity requirements that apply to all other publicly funded preschools, public and private, secular and religious.”
What the lower courts said
Colorado says religious preschools in the program may keep teaching their faith, that its rule allows no exceptions, and that services for children with disabilities and from low-income families are part of equal opportunity rather than exceptions to it. The U.S. Court of Appeals for the 10th Circuit agreed on Sept. 30, 2025, finding the rule neutral and generally applicable under Employment Division v. Smith, the court's 1990 precedent.
The justices agreed on April 20 to hear the case. The federal government filed a brief supporting the parishes and was given time to argue on their side. Dozens of friend-of-the-court briefs were filed, among them one for Colorado by two former Catholic school superintendents.
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