22 states, prominent legal scholar, diverse faith groups back Catholic parents & preschools at Supreme Court Coalition urges Court to block Colorado’s exclusion of Catholics from “universal” preschool program

WASHINGTON – 22 states, diverse faith groups, Catholic families, a prominent legal scholar, and numerous think tanks and public policy groups have filed a total of 19 friend-of-the-court briefs asking the U.S. Supreme Court to stop Colorado from excluding Catholic preschools and families from the state’s “universal” preschool funding program because of their faith. In St. Mary Catholic Parish v. Roy, the U.S. Court of Appeals for the Tenth Circuit recently upheld thestate’s discriminatory exclusion, punishing faith-based preschools and the families they serve for operating consistent with their religious beliefs. The court even praised Colorado’s gerrymandered regime as a “model” and an “example”for other states to follow. With Becket’s help, these Catholic preschools and families recently asked the Supreme Court to stop Colorado from discriminating against religious believers. 

Families who send their kids to Catholic preschools in the Archdiocese of Denver expect them to receive a high-quality education and to be part of a faith-centered Catholic community. That’s exactly what these preschools offer—supporting parents in the religious and educational upbringing of their children by providing excellent intellectual, moral, and spiritual formation. When Colorado launched its UPK program—offering families 15 hours of free preschool per week at the private or public schools of their choice—families sending their kids to Catholic preschools across Colorado were eager to participate. But state officials imposed restrictions that excluded Catholic preschools simply because they ask families who enroll to support their Catholic faith. Thus, Colorado families who want a Catholic education for their kids, like Becket clients Daniel and Lisa Sheley, are now forced to pay thousands of dollars out of pocket each year while those attending nearly 2,000 other preschools—public or private—are receiving state funds to help cover the cost of the preschool of their choice. 

Highlights from yesterday’s filings include:

• 22 states, led by West Virginia, urged the Supreme Court to protect religious preschools that are excluded from public funding because of their faith. These states warn that letting the decision stand would make it easier for governments to push religious organizations out of public life.

• Diverse faith groups, including the United States Conference of Catholic Bishops, the Church of Jesus Christ of Latter-day Saints, the Ethics and Religious Liberty Commission of the Southern Baptist Convention, the Lutheran Church-Missouri Synod, the National Association of Evangelicals, the Coalition for Jewish Values, the Jurisdiction of the Armed Forces and Chaplaincy, the Islam and Religious Freedom Action Team, and the Jewish Coalition for Religious Liberty, emphasized numerous problems with the Tenth Circuit’s decision and highlighted the court’s failure to adequately protect religious freedom for people of different faiths. 

• Religious liberty law scholar Stephanie Barclay explained how the Tenth Circuit’s errors are a result of the uncertainty created by the Supreme Court’s much-maligned decision in Employment Division v. Smith and offered the Court a better historical approach for analyzing claims under the Free Exercise Clause.

• Colorado Catholic families, represented by attorney Andrea Picciotti-Bayer, shared how exclusion from Colorado’s universal preschool funding program has been harmful to them and to many others in their community. 

• Prominent legal groups, including Pacific Justice Institute, Alliance Defending Freedom, and Thomas More Society, argued that the Tenth Circuit disregarded Supreme Court precedent and wrongly applied its oft-criticized decision in Employment Division v. Smith.

• Public policy groups, think tanks, law school centers, and education choice advocates, including the Manhattan Institute, EdChoice, the Sutherland Institute, the Center for American Liberty, the Notre Dame Education Law Project, the Robertson Center for Constitutional Law, Concerned Women for America, and America’s Future affirmed the importance of equal access to generally available government funding programs and emphasized the many benefits of including a diverse group of providers in the state’s universal preschool program. 

Statements for media use:  

“We are humbled by this support for our preschools, who simply want to help parents educate their children in the richness of the Catholic faith using Colorado’s universal preschool program,” said Dr. Scott Elmer, D. Min, Superintendent of Catholic Schools & Chief Mission Officer for the Archdiocese of Denver. “Our preschools aren’t asking for special treatment, just equal treatment. We pray the Court takes this case and upholds the promise of universal preschool for every family in Colorado.” 

“This broad coalition of states, faith communities, think tanks, and scholars shows just how important this case is,” said Nick Reaves, senior counsel at Becket and lead attorney for the preschools and families. “The state is picking winners and losers based on their religious beliefs, while thumbing its nose at several recent Supreme Court decisions that should have stopped this religious discrimination in its tracks. The Supreme Court should step in and ensure that Colorado’s so-called universal preschool program actually lives up to its name.” 

The Court is likely to decide whether to hear this case in early 2026.

For more information or to arrange an interview with a Becket attorney, contact Ryan Colby at [email protected] or 202-349-7219.