Supreme Court takes up religious freedom case from Colorado preschools

The U.S. Supreme Court will hear arguments on whether Colorado can deny preschool funds to Catholic schools that bristle at the state's requirement of equal opportunity for all.

The high court granted a petition for writ of certiorari Monday filed by the preschool administrators at two Colorado-based schools, St. Mary Catholic Parish of Littleton and St. Bernadette Catholic Parish of Lakewood.

The administrators argue a law that requires state-funded preschools to provide all families an equal opportunity to enroll in their programs, regardless of factors like religious affiliation, sexual orientation or gender identity, violates their religious rights.

The administrators seek to overturn Employment Division v. Smith, a 1990 Supreme Court decision that created a so-called "neutrality and general applicability" rule for determining if a law discriminated against religious practice.

The ruling was intended to provide a commonsense standard for identifying religious discrimination, but the school officials claim it "has instead been the kind of dysfunctional and difficult-to-administer precedent that generates church-state conflicts rather than resolving them."

Colorado voters approved a state-funded preschool program by ballot measure in 2020. State legislators then passed the Early Childhood Act, creating a government agency and rules to run the program.

One of those rules hinged funding on having open doors. State law requires preschools to "provide eligible children an equal opportunity to enroll and receive services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level or disability, as such characteristics and circumstances apply to the child or the child's family."

During its first year, the program funded 15 hours of free education per week for 40,000 children attending 1,900 different preschools, including 900 students who attended 40 faith-based programs.

Preschool administrators at the St. Mary and St. Bernadette Catholic parishes sued Colorado Department of Early Childhood director Lisa Roy over the eligibility requirement in August 2023, which would require the schools to admit LGBTQ+ families to receive funding.

Following a bench trial, U.S. District Judge John Kane sided with the state on the law's constitutionality but fined Colorado $1 for allowing religious schools to discriminate against other religions.

The 10th Circuit affirmed the Jimmy Carter appointee's ruling on appeal.

Applying the standard in Smith, U.S. Circuit Judge Richard Federico said the nondiscrimination requirements impacted all schools in the state equally and therefore struck a balance between the schools' religious freedom and students' right to equal treatment.

"While the Constitution protects religious freedom, courts have long recognized the simple reality that the government must be able to enforce the law equally against everyone, no matter an individual's beliefs," wrote Federico, a Joe Biden appointee.

The administrators write in their petition that their case offers a perfect example of the problems Smith creates for religious people.

They accuse the state's program of reducing access to early education rather than expanding it, while pushing parents and children toward preschools that share the government's views on issues of gender and sexual orientation.

"Instead of a clear standard, Smith's framework has proven highly malleable and unpredictable," the administrators write. "Indeed, application of the test has 'generated a long list of circuit conflicts.'"

The administrators argue the 10th Circuit applied the standard in Smith while ignoring the high court's ruling in Carson v. Makin, a 2022 decision that overturned a law in Maine that prohibited parents from using state funding to attend schools that provide religious instruction.

The case will be heard in the fall.