Catholic family and preschools urge Supreme Court to end Colorado’s religious discrimination High Court urged to stop anti-Catholic discrimination in Colorado’s so-called “universal” preschool program

WASHINGTON – A group of Catholic parents and preschools urged the Supreme Court yesterday to stop Colorado from excluding them from the state’s “universal” preschool program because of their faith. In St. Mary Catholic Parish v. Roy, the U.S. Court of Appeals for the Tenth Circuit upheld Colorado’s religious discrimination, punishing faith-based preschools and the families they serve for operating according to their religious beliefs. With Becket’s help, Catholic parents and preschools asked the Supreme Court to step in, and the Court agreed to hear the case this fall.

When Colorado created its “universal” preschool program, it promised all Colorado families 15 hours of free preschool per week at the public or private preschool of their choice, a benefit the state has extended to over 80,000 children and that is worth over $6,000 per child. Catholic parents like Becket clients Daniel and Lisa Sheley hoped to use this benefit at their parish preschool in the Archdiocese of Denver. But the state’s promise proved illusory: Colorado excluded Catholic preschools because they ask all families to support and uphold Catholic teaching. 

In case after case, the Supreme Court has ruled religious exclusions like Colorado’s violate the U.S. Constitution. Most recently, in Carson v. Makin, the Court held that states could not bar religious schools and families from tuition assistance because of their religious beliefs and practices. But instead of applying Carson, the Tenth Circuit tried to gut it, limiting it to only those cases in which a state excludes religion by name. To be sure, Colorado’s rules do not say “Catholic preschools need not apply.” But that hardly matters when they outlaw the very religious practices that make those schools Catholic in the first place. In a brief filed yesterday, Becket argues that Colorado’s attempt to circumvent binding Supreme Court precedent cannot stand.

But Colorado is not just excluding religious preschools. Instead, it is applying a double-standard to do so. When it comes to groups state bureaucrats favor, Colorado does not take its own rules very seriously. It freely permits other preschools to limit enrollment to specific communities, including low-income families, families receiving housing vouchers, and children with disabilities. State bureaucrats also admitted that families may use state funding at preschools that give enrollment preferences to LGBTQ families, transgender children, or even children of a specific race. But even as it grants these capacious exemptions, the state stubbornly denies Catholic preschools the ability to participate in UPK while operating their preschools in accordance with their Catholic beliefs. This blatant hypocrisy has already harmed Catholic families and preschools. Since UPK began, enrollment in Catholic preschools has declined almost twenty percent. Indeed, two Catholic preschools were forced to close their doors while this case was ongoing, including one that predominantly served low-income and minority families, due to funding shortfalls and a decline in enrollment.

This case also highlights Colorado’s terrible track record on religious freedom. Since 2018, the Supreme Court has had to rebuke Colorado’s disregard for the First Amendment in three major cases: Masterpiece Cakeshop, 303 Creative, and Chiles v. Salazar. This case shows that Colorado still hasn’t learned its lesson. 

Statements for media use:

Dan and Lisa Sheley, Catholic parents of seven and Becket clients in the case:

“Every family wants their child to be educated in a school that reinforces the same core values taught at home. Colorado lets other families freely choose the preschools that will best support their children—while penalizing us for making that same choice because of our faith. We’re asking the Supreme Court to fix this religious discrimination.”

Erika Navarrete Nagle, Catholic mother of three whose children attend St. Mary’s:

“Colorado loves to brag about inclusion, until Catholic families want to be included. Our family is being punished for our faith. The Supreme Court should tell the state that real inclusion doesn’t mean kicking out people for exercising their religious freedom.”

Nicholas Reaves, senior counsel at Becket and attorney for the families and preschools:  

“Colorado has lost three First Amendment cases at the Supreme Court in short succession. Apparently, the State’s bureaucrats still haven’t gotten the message. This time, they’re trying to exclude Catholic families from a tuition funding program specifically billed as “universal,” and that was designed to make preschool affordable for everyone. We’re confident the Court will school Colorado once again on the Constitution.”

The Court will hear oral arguments in the fall. 

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