Supreme Court to Hear Catholic Preschools' Fight With Colorado. Faithful Parents Should Not Pay a Price for Their Faith.

The facts come first below. My opinion follows in the section marked as opinion.

The Supreme Court will hear arguments Tuesday, Nov. 3, in a challenge brought by Catholic preschools that say Colorado shut them out of its universal preschool program because of their faith, SCOTUSblog reported. The case, St. Mary Catholic Parish v. Roy, asks whether the First Amendment requires the state to give the schools a religious exemption from a nondiscrimination rule that would require them to admit every family, including LGBTQ children and children with LGBTQ parents.

The program and the rule

Colorado voters approved the universal preschool program in a 2020 ballot measure, the ABA Journal reported. Families can receive up to 15 hours of free preschool per week at participating schools, according to SCOTUSblog, and Courthouse News put the benefit at more than $6,000 a year.

To take part, a preschool must sign an agreement promising to "provide 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," SCOTUSblog reported. The program lets preschools give preferences to low-income families and children with disabilities, and a state regulation includes a "catchall" preference, but Colorado would not exempt the Catholic schools from the nondiscrimination agreement.

The Archdiocese of Denver runs 34 preschools, NBC News reported when the court agreed in April to hear the case. The archdiocese says the rule conflicts with its religious rights because Catholic doctrine does not recognize same-sex relationships or transgender status. Also suing are parishes in Littleton and Lakewood and two parishioners, Daniel and Lisa Sheley, who have five children. "All we want is the freedom to choose the best preschool for our kids without being punished for our faith," the Sheleys said in a joint statement quoted by NBC. The Trump administration filed a brief supporting the archdiocese.

What each side argues

The schools say they "have no objection to Colorado's decision to allow over 1,000 … preschools to selectively serve the communities they are designed to serve" and "simply want the same accommodation extended to them," according to SCOTUSblog. Colorado answers that the Catholic preschools "remain welcome to participate," but only if they are "subject to the same equal-opportunity requirements that apply to all other publicly funded preschools—public and private, secular and religious."

The 10th U.S. Circuit Court of Appeals ruled for the state. It found that Colorado "did not exclude" religious preschools and that the rule was neutral and generally applicable under the court's 1990 decision in Employment Division v. Smith, SCOTUSblog reported. The justices will consider how far their 2022 ruling in Carson v. Makin reaches, and what a challenger must show to prove a law is not generally applicable.

Lisa Roy, executive director of the Colorado Department of Early Childhood, testified in a 2023 deposition: "I cannot grant an accommodation to a nondiscrimination … statement that's in statute," the ABA Journal reported. Mark Rienzi, president of the Becket Fund for Religious Liberty, which brought the challenge, said: "Parents who want to send their kids to Catholic [preschools] don't get the $6,000 benefit that you get if you send your kids to almost any other school."

West Virginia and 20 other states filed a brief backing the preschools, while a group of historians and the NAACP Legal Defense and Educational Fund filed briefs supporting Colorado, Courthouse News reported.

Opinion: A state that pays for every child's preschool should not make Catholic parents pay for their faith

Colorado's argument sounds fair at first. Same rules for everyone. But according to SCOTUSblog, the program already lets schools give preferences to low-income families and children with disabilities, and its regulations allow other preferences the state may grant. The Catholic schools point to more than 1,000 preschools that serve particular communities. The one thing the Catholic schools may not do is ask families to support what the Church has taught for two thousand years about marriage and the human body. That is not a neutral rule. It is a rule that lands hardest on believers.

Fairness to the other side matters here. No one should want a 4-year-old to feel unwanted, and Colorado says it wants every child to have a seat. That is a good goal. But the state has many seats to offer. A family that does not share the Catholic faith has more than 2,000 other free preschools to choose from, according to the schools' own filing quoted by Courthouse News. A Catholic family that wants its child formed in the faith has only the parish school, and Colorado has priced that choice out of the free program.

Scripture puts the duty of forming children on parents, not the state: "And thou shalt teach them diligently unto thy children, and shalt talk of them when thou sittest in thine house, and when thou walkest by the way, and when thou liest down, and when thou risest up." A Catholic preschool is one way parents keep that command. The Supreme Court ruled in 2017, 2020 and 2022, as the ABA Journal noted, that a state may not cut religious schools out of public aid because they are religious. The question now is whether a state can do the same thing by writing its rule a little differently.

The marriage question is being fought in other states too, as in our report Virginia Pastor Sues Over Question 2 Marriage Amendment. Believers should fight these battles with grace, not anger. The Catholic schools are not asking Colorado to change its law for anyone else. They are asking to be left free to teach what they believe while their families share in a benefit every other Colorado parent receives. The justices should let them.