In Colorado, “universal” evidently means “everyone except those holding disfavored religious views.” Over the past two years, state officials have waged a relentless campaign to bar a group of faith-based preschools from Colorado’s universal preschool program (UPK), denying thousands of families crucial educational aid purely because of the preschools’ religious exercise. This blatant discrimination isn’t just unconstitutional; it also reflects a troubling trend. Government officials are openly disregarding (or distorting) recent Supreme Court precedents protecting religious freedom. Colorado has repeatedly been rebuked by the U.S. Supreme Court for its religious hostility; St. Mary Catholic Parish v. Roy gives the Justices an easy opportunity to step in and set the record straight.
In 2023, Colorado launched its brand-new universal preschool funding program, offering families up to fifteen hours per week of tuition-free preschool at a provider of their choice—public or private, secular or religious. Gov. Jared Polis hailed UPK as a milestone for educational access, claiming that it had “unlock[ed] the opportunity for every family to send their child to preschool.” But two years later, many religious families across Colorado are still locked out.
Why? Colorado officials have taken the position that Catholic preschools cannot ask families who want to enroll to support the Catholic Church’s teachings, including on issues related to sexuality and marriage. For these Catholic preschools, it would undermine their mission and muddle their message to admit and be forced to accommodate families who disagree with the Church’s teachings and who act as a counter-witness to their faith. But secular schools require similar alignment all the time: Many Montessori schools, for example, require parents who enroll to sign a statement agreeing to the school’s fundamental principles.
Despite taking a hard stand against Catholic preschools, Colorado has been generous in granting secular preschools the flexibility they need to serve their community. A state official even testified that, in her view, UPK preschools could admit only gender-nonconforming children and could prioritize serving LGBTQ families or children of color without breaking state law. So, Colorado knows how to accommodate preschools that serve diverse communities—but it refuses to accommodate religious groups with beliefs it dislikes.
The upshot? Two Catholic preschools have closed, including one that served low-income families from black and Latino communities. Enrollment is down almost 20 percent across the archdiocese’s parish preschools. Being excluded from UPK undoubtedly puts enormous pressure on Catholic schools and families to abandon their beliefs. The Denver Post pounced on this, calling Colorado’s pressure campaign an “incredible opportunity” for the archbishop to abandon Church teaching and start enrolling families who disagree with the Catholic Church’s beliefs so its preschools can receive UPK funding. Unable and unwilling to compromise on matters of faith, the archdiocese has remained steadfast.
With the help of the Becket Fund for Religious Liberty, the archdiocese and its parish preschools have been fighting against this religious bigotry in court. Throughout this litigation, however, Colorado has insisted that its rules are neutral and apply to all. The Tenth Circuit recently agreed, citing Employment Division v. Smith, an oft-criticized 1990 Supreme Court ruling that sharply narrowed First Amendment protections for religious exercise. In Smith, the Court held that laws that are neutral toward religion and apply to everyone can burden religion without violating the Constitution. But a law—by definition—doesn’t apply to everyone when state officials make exceptions for favored groups. That’s why we asked the Supreme Court last week to take up the case.
Three times in the past decade, the Court has invalidated state laws that excluded religious schools and the families they serve from government funding. In Trinity Lutheran, Espinoza, and Carson, the Supreme Court made clear that states cannot exclude religious schools from public benefit programs (like UPK) because of their religious exercise. But states like Colorado are trying to sidestep those rulings by excluding religious people under the guise of a neutral-sounding anti-discrimination law. That’s a distinction without a difference, especially in this case, where the only preschools excluded are religious.
If past is prologue, religion-hostile states will keep hunting for ways to dodge the Supreme Court’s rulings. This case presents the Supreme Court with a perfect example of that behavior. That’s why the Justices should slap down Colorado’s latest anti-religious gambit. Doing so would not only ensure that thousands of families receive the state’s promise of universal preschool, but would also send a message to bureaucrats nationwide who think they can thumb their nose at the Constitution and get away with it.
