Supreme Court to decide if anti-LGBTQ Catholic schools in Colorado can receive public funding

Colorado said no to discrimination. Now religious schools are asking the Supreme Court to force taxpayers to pay for it.

Apr 21, 2026

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Yesterday, the Supreme Court announced it would take up a case involving anti-LGBTQ Catholic schools in Colorado. The schools, which refuse to enroll anyone with openly gay or transgender parents, were banned from participating in a taxpayer-funded universal pre-K program. They want access to that money despite their bigotry, and the Supreme Court’s conservative super-majority could bail them out after a series of losses in lower courts.

Here’s how we got to this point:

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.)

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 to sue state officials. They wanted to receive taxpayer funding without giving up their bigotry.

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 want to send their kids to Bigot Factories, they have every right to do so, and no one is 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?!

That was 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 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 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.

It’s telling 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 kept fighting and appealed the decision. But last October, the 10th U.S. 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.

The Catholic Church’s lawyers also argued that Colorado allowed schools to “discriminate” on the basis of income (Head Start) and disability (through Individualized Education Programs or IEPs). So didn’t allowing some preschools to prioritize students in those situations mean Catholics could prioritize students whose families fit their rigid preferences? The Tenth Circuit didn’t see those as the same things. The former situations were 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 was no reason to think there was any “religious hostility” involved when the state was formulating its rules.

And 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 were furious, which is why they appealed again, this time to the Supreme Court.

They argued that the universal pre-K program had already led two schools in the Archdiocese to “[close] their doors due to shortfalls in funding and decreased enrollment.” (Including one that was shut down after the lawsuit began.)

Across the Archdiocese, parish preschool enrollment has declined almost twenty percent since UPK was enacted. And families committed to Catholic education… are missing out on thousands of dollars of state funding solely because they chose a Catholic preschool for their children.

Again, these families want taxpayer dollars for private religious education they can already access, and they’re whining about it because these Catholics believe they’re above the law.

But now the Supreme Court is taking up the case.

In legalese, the Church and its right-wing lawyers from the Becket Fund for Religious Liberty asked the Supreme Court to overturn a 1990 decision (Employment Division v. Smith) that said neutral, generally applicable laws can’t be challenged on the grounds that they violate your religious beliefs. The Supreme Court said they wouldn’t be considering that question, but they could find a way to force Colorado to accept the Catholic schools into the program despite the violation of anti-discrimination laws. They will instead consider whether the exemptions that already exist in Colorado’s program must be extended to the Catholic preschools.

Every time I write about this topic, there’s always a question of why any decent parents would send their kids to a Catholic school if they oppose the Church’s bigotry. But it’s not as simple as that. Sometimes, a Catholic school is the only local option for pre-K. Sometimes, the families are Catholic in name even if they don’t agree with all the teachings. Sometimes, they’re just unaware of the Church’s prejudice.

Whatever the case, it seems obvious that the goal of challenging these rules is no longer about participating in the universal Pre-K program, but rather getting the Supreme Court 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 because the Supreme Court’s majority will do just about anything to let religious zealots circumvent generally applicable laws, we could be seeing a future where even anti-discrimination laws can be nullified by religious bigots who can’t fathom the idea of not being able to discriminate against certain people.

“If the court rules in favor of the religious plaintiffs, it could snowball discrimination by publicly funded entities,” [Freedom From Religion Foundation] Legal Director Patrick Elliott warns. “That would undermine decades of civil rights law and harm vulnerable communities, especially religious and nonreligious minorities and LGBTQ+ families.”

It’s possible the best-case scenario here is that Colorado will have to let a few Catholic schools be bigots with state money in order to make sure the program, with all its benefits, can keep going. The fear, of course, is that the Court will use this case to expand faith-based bigotry in other programs across the country.

The case will be heard later this year.

(Portions of this article were published earlier)

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