Anti-LGBTQ Catholic schools lose bid to discriminate in Colorado's universal preschool program

A federal appeals court said that if Catholic preschools want taxpayer dollars, they have to play by the state's rules

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A federal appeals court has thankfully ruled that Colorado lawmakers didn’t violate the rights of Catholics when their universal preschool bill included a Don’t Be Bigots clause. A ruling in the other direction could have been disastrous.

Here’s how this became an issue in the first place: In April of 2022, Democrats in Colorado (with very little GOP support) passed a law establishing free pre-school across the state beginning in 2023. Children can now access half-day programs at no cost to their parents. The governor’s office said it would save families an average of $4,300 a year and give kids a head start in their education. It was just an incredible opportunity for families that might not have been able to afford such programs. (Since the $322 million program launched in August of 2023, it has helped 40,000 four-year-olds attend 1,900 participating schools, 40 of which are religious. And that’s from a report in 2024.)

In order to receive funding, schools had to follow some basic rules. For example, they couldn’t discriminate against students. They had to accept kids regardless of their (or their family’s) race, religion, sexual orientation, gender identity, etc.

That restriction led the Denver Catholic Archdiocese and two of its parishes—the St. Mary Catholic Parish in Littleton and the St. Bernadette Catholic Parish in Lakewood—to sue state officials. They wanted to receive taxpayer funding without giving up their bigotry.

The Archdiocese of Denver (screenshot via YouTube)

Their argument was that Catholicism required them to reject students who have gay parents and staffers who are in same-sex relationships. They said they couldn’t recognize the existence of transgender people or even use their pronouns if they conflicted with whatever was written on a birth certificate. They wanted to ban students from wearing the “opposite sex’s uniform” or using what they deemed were the wrong bathrooms. They also wanted to prioritize the acceptance of kids from Catholic families over, say, Jewish ones, even though the law already permitted them to accept kids from their own parishes.

But it didn’t take a genius to understand the real goal here: This was always about Catholics’ ability to discriminate against LGBTQ people.

The lawsuit said enrolling children with gay parents into an Archdiocesan school “is likely to lead to intractable conflicts” because a “Catholic school cannot treat a same-sex couple as a family equivalent to the natural family without compromising its mission and Catholic identity.”

There was a simple solution to that, of course: Just don’t accept the state’s money.

No one was forcing the Catholic Church to participate in the program. If families wanted to send their kids to Bigot Factories, they had every right to do so, and no one was stopping them. The Archdiocese could just do everything it was doing before this law went into effect.

The Catholic Church knew this. Which is why they were also arguing that the new universal Pre-K program was bad for business. Because if pre-school was free elsewhere, why would anyone give them money? And if enrollment went down, they would have to charge their own members even more. Why didn’t state officials care about the Church’s bottom line, dammit?!

This is seriously what they wrote in the lawsuit:

By creating a program that provides “universal” funding for preschool programs, Colorado has cornered the market for preschool services.

Any providers who do not participate in the UPK program will be severely disadvantaged since they will be forced to charge significantly higher prices than the participating programs—both secular and religious—which aren’t religiously barred from participating in the UPK program.

A press release from the conservative legal group Becket added:

This ban forces parents to choose between paying out of pocket for the cost of faith-based preschool or receiving a free preschool education at any other private school in Colorado. It also hurts the ability of schools like St. Mary’s and St. Bernadette’s to compete with other preschools that can offer free preschool education.

In the marketplace of ideas, the Catholics were admitting they were losers—and that the neutral rules were so unfair to them, it was literally illegal. Therefore, the rules needed to change. Not their beliefs. (Never their beliefs.)

This was the epitome of broken brain religion for you: A program that would lift up families that couldn’t afford early childhood education, and which could help students get a leg up on their formal schooling, was a problem for these Catholics because they prioritized their own bigotry and ignorance over the needs of children.

It’s not that the Archdiocese wanted to end the program. They just wanted to have their cake and eat it too. They wanted to be able to discriminate against LGBTQ staffers and kids and families while still being eligible for government funding.

When a similar predicament happened in Maine and religious schools demanded government funding that was part of a state-sponsored program, lawmakers responded by saying taxpayer money could go to religious schools as long as they didn’t discriminate. That led to most religious schools ditching the program entirely. There’s no reason that couldn’t have happened here.

It was also revealing that there was nothing in the Archdiocese’s lawsuit about their right to reject divorced parents or anyone who’s had an abortion. Because even though those things also violate Catholic doctrine, the Church has never really had a problem looking the other way on those “sins.” (They have their own made-up sin hierarchy.)

In June of 2024, U.S. District Court of Colorado Judge John Kane ruled mostly in favor of the state. They weren’t discriminating against religious schools by saying all participants had to abide by the non-discrimination rules, he wrote. But it wasn’t a total win. By allowing Catholic schools to prioritize children in Catholic families over, say, Jewish families, the state had allowed a faith-based exemption to the law.

So were faith-based exemptions allowed or not? The state “cannot have it both ways,” he wrote.

The Catholic schools called it a victory... but it wasn’t the complete victory they wanted. They had hoped the judge would declare the non-discrimination rules illegal. He didn’t. So they appealed the decision.

That could have been irrelevant, though. According to Chalkbeat Colorado, the state removed the non-discrimination rules altogether for the 2024-2025 school year. It seemed like the state was willing to let a few Catholic schools be bigots with state money in order to make sure the program, with all its benefits, could keep going.

But as long as the case remained in the courts, there could have been long-term consequences that hurt families outside the rigid Catholic mold.

If the Catholic preschools win, it’s possible Colorado children could be shut out of some preschools because of their or their parents’ identities.

Brittany, the mother of a 7-year-old transgender girl, choked up as she talked about the lawsuit.

“It’s so upsetting that there’s so much hate for our kids,” she said. “These kids are just kids. They don’t have a political agenda.”

…

In a landmark 2022 Maine case called Carson v. Makin, the high court ruled that religious schools can’t be excluded from publicly funded programs if secular private schools are allowed to participate. But the court didn’t clearly address whether states could require those religious schools to agree to non-discrimination rules in order to participate.

“That then tees up this tension,” said Robert Kim, executive director of the Education Law Center. “The religious schools are arguing… ‘Having to abide by those non-discrimination policies violates our religious rights.’ ”

It seemed obvious that the goal of challenging these rules was no longer about participating in the universal Pre-K program, but rather getting this case in front of the Supreme Court so that its conservative super-majority could use it to create yet another hole in the wall between church and state, perhaps by ruling that religious beliefs can always be a loophole for people who don’t want to follow the law even while receiving government benefits.

The irony is that no one was ever forcing the Catholic Church to do anything that violated its beliefs; the Archdiocese was just unhappy that everyone else was doing pretty damn well by rejecting their bigotry and they couldn’t handle being left behind.

But now, after years of litigation, there’s finally some good news. Last week, the Tenth Circuit Court of Appeals affirmed the earlier ruling.

The Department did not exclude faith-based preschools from participating in UPK. Indeed, they welcomed and actively solicited their participation. 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. Thus, the inclusion of religious schools as welcome participants in Colorado’s UPK program distinguishes this case from Supreme Court decisions where the plaintiffs were excluded from participation based upon their religious exercise and status.

…

… we can find no reason to rule that the Department has violated the Parish Preschools’ free exercise rights. This ruling does not mean that we shirk our constitutional duty to protect the Parish Preschools’ freedom of worship. It simply means that when a school takes money from the state that is meant to ensure universal education, then its doors must be open to all.

That’s apparently a concept the Catholic Church doesn’t understand.

What about the fact that the government allowed some preschools to prioritize students in Head Start or who have Individualized Education Programs (IEPs)? Didn’t that mean Catholics could prioritize students whose families fit their rigid preferences? The Court didn’t see those as the same things. The former was meant to keep the program inclusive while the latter was about exclusivity.

… we are not persuaded that the IEP and Head Start preferences amount to a violation of the nondiscrimination requirement. The Department interprets the nondiscrimination requirement to prevent preschools from denying admissions to children because they are disabled or from a low-income family. It does not, however, protect children without disabilities or children from high-income families. Disability and income level are treated differently from other protected classes in light of the Colorado General Assembly’s substantive goals in implementing UPK. The General Assembly specifically declared its intention to try and expand the number of disabled and low-income students attending preschool.

…

These provisions do not speak in general terms about ignoring disability status or income level. They specifically concern children who have a disability or are low-income. And the IEP and Head Start preferences were developed to help preschools comply with federal laws that specifically protect disabled and low-income children.

In short, there’s no reason to think there was any “religious hostility” involved when the state was formulating its rules.

To the Catholics’ argument that forcing same-sex couples or families with transgender kids to enroll in their pre-schools would violate their religious freedom, the Court rejected it entirely. After all, we’re only talking about kids, not people on the payroll.

This is a case about preschoolers. No one would reasonably mistake the views of preschool students for those of their school. And while we must “give deference to an association’s view of what would impair its expression[,]” that does not mean that we must buy that “mere acceptance of a member from a particular group” is enough… Teachers and staff are the ones responsible for disseminating a preschool’s message and developing the curriculum, not the preschool children they teach.

The lawyers for the Archdiocese remain furious that they can’t get taxpayer funds while imposing their bigotry in preschools:

Nick Reaves, senior counsel at The Becket Fund for Religious Liberty, sent CPR a brief statement.

“Colorado is punishing religious schools and the families they serve for following their faith,” he said. “The Tenth Circuit’s decision allows the state’s anti-religious gamesmanship to continue. We will keep fighting to ensure that every preschooler in Colorado can access quality, affordable education.”

The bottom line is that the law applies equally to everyone. No one can discriminate, and when there are exceptions allowed—to prioritize students with disabilities, for example—they are for good reasons and everyone can take them into consideration. As the judges concluded:

… the Department has made every effort to encourage faith-based preschools to participate in UPK short of granting them an unlawful exemption from the nondiscrimination requirement. As a result, forty faith-based preschools are currently part of UPK. The program is a model example of maintaining neutral and generally applicable nondiscrimination laws while nonetheless trying to accommodate the exercise of religious beliefs.

This ruling isn’t just a victory for Colorado. It’s a stinging rebuke of the Catholic Church’s attempt to use religion as a weapon of exclusion while demanding a cut of taxpayer dollars.

The Archdiocese’s position was never about faith, but about preserving the “right” to discriminate against LGBTQ families, transgender children, and anyone else who doesn’t fit neatly into their hierarchy of worthiness. By affirming that universal education must remain—wait for it—universal, the courts have made clear that Colorado has every right to help families as it sees fit without worrying about having to protect the prejudices of a powerful religious institution.

Thank goodness the judges saw through the charade. Catholic leaders weren’t persecuted; they were simply asked to follow the same basic rules as everyone else. The fact that they were outraged about this shows you how hollow their claims of “religious freedom” really are. Colorado shows us that public money must serve the public good, rather than bankroll bigotry.

(via Religion Clause. Portions of this article were published earlier)

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