The Supreme Court will hear oral argument on Nov. 3 in a challenge brought by Catholic preschools in Colorado, which argue that their exclusion from Colorado’s universal preschool program is a form of religious discrimination in violation of the First Amendment, because Colorado will not provide them with an exemption from rules that would require them to admit everyone – including LGBTQ children and children with LGBTQ parents.
The Catholic preschools say that they “have no objection to Colorado’s decision to allow over 1,000 … preschools to selectively serve the communities they are designed to serve.” Instead, the preschools emphasize, they “simply want the same accommodation extended to them.”
Colorado counters that the Catholic preschools “remain welcome to participate in” the universal preschool program. However, the state writes, if they do, they must be “subject to the same equal-opportunity requirements that apply to all other publicly funded preschools—public and private, secular and religious.”
Under the universal preschool program, families in Colorado can receive up to 15 hours of free preschool per week at participating schools. To be part of the program, preschools must meet state standards in areas such as employee training; they are also required to sign a nondiscrimination agreement, in which they consent to “provide eligible children an equal opportunity to enroll and receive preschool services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability.” Although a participating faith-based preschool may prioritize the enrollment of families that belong to the same faith as that school, Colorado does not allow them to refuse to serve LGBTQ families, because it believes such refusals would violate the nondiscrimination agreement.
The plaintiffs in the case are the Archdiocese of Denver, two Catholic parishes with preschools (one of which has since closed), and two parents of preschool-aged children. They went to federal court to challenge the state’s policy, arguing that making Catholic preschools’ participation in the universal preschool program contingent on accepting the agreement amounts to unlawful religious discrimination and that the First Amendment requires Colorado to create a religious exemption to allow them to participate in the program.
The U.S. Court of Appeals for the 10th Circuit ruled for the state. It acknowledged that in a line of decisions, the Supreme Court has held that “when a state offers subsidies for private education, it cannot categorically withhold those funds from religious institutions.” In the 10th Circuit’s view, however, those cases do not apply to the preschools’ challenge because Colorado “did not exclude” religious preschools from the universal preschool program. To the contrary, the court of appeals wrote, it “welcomed and actively solicited their participation” and it is not seeking “to prohibit funds from being used for religious purposes.” “The restrictions imposed by the nondiscrimination requirement universally cover enrollment policies and conduct, but they are not a targeted burden on religious use.”
The court of appeals also rejected the challengers’ contention that the nondiscrimination requirement is unconstitutional because it burdens their right to freely exercise their religious beliefs. In the court’s view, Colorado’s conditions were neutral and generally applied to every preschool, regardless of religion – the kind of government actions, the Supreme Court held in 1990 in Employment Division v. Smith, that normally do not violate the Constitution.
Although a regulation issued by the Colorado Department of Early Childhood contains a series of preferences to facilitate the matching of families to preschools, including a “catchall” preference that allows preschools to request (and the state to grant) a preference not listed in the regulation, the court of appeals said that preference is not the kind of individualized exemption that would render the law not generally applicable, because the preschools are still required to comply with the nondiscrimination requirement.
The court of appeals also rebuffed the challengers’ argument that the nondiscrimination requirement is not generally applicable because the program permits schools to give preferences to low-income families and children with disabilities. As an initial matter, the court of appeals suggested, it was “not persuaded” that such preferences actually are exceptions to the nondiscrimination requirement because they were intended to protect such children and families and do not discriminate against wealthier families or children without disabilities. But in any event, it continued, the nondiscrimination agreement is still generally applicable because the Supreme Court’s cases only prohibit the state from treating religious activity less favorably than comparable secular activity. And the preferences for low-income families and children with disabilities are not comparable, the court of appeals concluded, because – unlike the exemption that the challengers in this case seek – they do not “undermine[] the government’s asserted interest in ensuring equal access to preschools.”
The challengers came to the Supreme Court in November 2025, asking the justices to weigh in – which they agreed in April 2026 to do.
At the Supreme Court, the justices will review two main questions. The first is the scope of the court’s 2022 decision in Carson v. Makin, in which the court struck down a Maine law that allowed public funding to be used for private schools, but not for schools that provide religious instruction.
The challengers contend that under Carson, this case should be “an uncomplicated one.” Colorado, the challengers say, “knowingly excluded Catholic preschools solely on account of their religious exercise” – specifically, “their religious practices of ensuring that all enrolling families are supportive of the Catholic Church’s teachings on sex and marriage and of treating enrolled four-year-olds in accordance with their biological sex.” That exclusion, the challengers argue, places a burden on their ability to exercise their religion, in violation of the Constitution.
Colorado counters that Carson “applied the settled principle that government may not target religion for disfavored treatment.” What the preschools are seeking instead, it says, is a “new rule that would trigger strict scrutiny whenever public-benefits conditions incidentally burden religiously motivated conduct.”
The second question before the justices centers on what a challenger has to show to prevail on a claim that a law is not generally applicable for purposes of Smith.
In Tandon v. Newsom, the challengers contend, the Supreme Court made clear that, for purposes of Smith, “[a] law is not generally applicable if it ‘treat[s] any comparable secular activity more favorably than religious exercise’” – a test that the universal preschool program fails. Colorado created the universal-preschool program to ensure equal access for all preschool-aged children, they emphasize. Because the exemptions for low-income families and children with disabilities allow preschools “to provide families with unequal access based on protected characteristics,” the challengers argue, “they undermine Colorado’s asserted interest in equal access ‘in a similar way’ to” the religious accommodation that the challengers seek. Moreover, the challengers add, the program also fails the “general applicability” test under Smith because it gives Colorado discretion, through the preference system, to allow participating preschools “to discriminate in favor of LGBTQ families and other groups,” such as “‘gender-nonconforming children,’ ‘children of color,’ or members of ‘the LGBTQ community.’”
Colorado pushes back, telling the justices that the law creating the universal preschool program “expressly prioritizes specialized services for” children from low-income families and children with disabilities, based on the state’s “longstanding awareness that ensuring equal opportunity for these children often requires providing them with additional support.” But “allowing publicly funded preschools to provide” such services does not “allow any secular conduct that undermines Colorado’s equal-opportunity interests”; therefore, it says, the law is generally applicable for purposes of Smith.
Similarly, Colorado continues, the system of preferences, used to match preschools with families, that are “unrelated to the characteristics protected by the equal-opportunity requirements, by definition, are not exceptions from those requirements.” It is clear, the state stressed, that such preferences can be implemented “only when” they “do not violate the equal-opportunity requirements.”
