The United States solicitor general filed an amicus brief urging the Supreme Court to halt Colorado's exclusion of Catholic schools from its universal preschool (UPK) program. The brief argues that the Colorado UPK program allows exemptions for secular schools based on certain criteria but denies them to religious schools, constituting religious discrimination. The legal dispute centers on the UPK program's equal opportunity mandate requirements, which have historically excluded several religious preschools seeking tuition assistance funding. The U.S. Court of Appeals for the 10th Circuit recently upheld the UPK program, leading the affected preschools and the Catholic Archdiocese of Denver to appeal to the Supreme Court. The solicitor general's filing suggests the Supreme Court should review the case to provide guidance on religious discrimination issues frequently encountered by lower courts.
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The U.S. Solicitor General, along with deputies Sarah Harris and Emily Hall, filed a 25-page amicus brief on February 3, 2026, urging the Supreme Court to review a case challenging Colorado's exclusion of Catholic preschools from its universal preschool (UPK) program.1 2 3
This filing highlights the "severity of the court of appeals’ error" in upholding the program despite claims of religious discrimination.1 2 3
Colorado's UPK program offers tuition assistance to families but excludes religious preschools due to requirements tied to its equal opportunity mandate, particularly on issues like sexual orientation and gender identity.1 2 3
Parish-run preschools, including St. Mary’s Catholic Preschool in Littleton, and the Catholic Archdiocese of Denver have faced years of legal challenges.1 2 3
The U.S. Court of Appeals for the 10th Circuit recently upheld the exclusions, prompting the appeal to the Supreme Court.1 2 3
The brief argues that Colorado grants exemptions from equal access rules to secular providers for low-income families or disabled children but denies them to religious schools.1 2 3
It contends this departs from "universal even-handedness," making it inconsistent to bar Catholic preschools from preferences based on their faith teachings.1 2 3
Review by the Supreme Court would provide guidance on religious discrimination issues facing lower courts.1 2 3
Becket Fund for Religious Liberty, representing the preschools, praised the brief as signaling Colorado's "egregious, illegal, and dangerous" discrimination.1 2 3
Senior counsel Nick Reaves warned that upholding the exclusion could endanger all religious groups in public programs.1 2 3
Scott Elmer of the Archdiocese of Denver emphasized providing Catholic-rooted education with equal access to free preschool services.1 2 3
Over 20 amicus briefs have supported the preschools since December 2025, including from the U.S. Conference of Catholic Bishops, Thomas More Society, Notre Dame Law Project, and 22 states led by West Virginia.1 2 3
The case ties into national school choice debates, with advocates framing it as essential for religious liberty in publicly funded education.1 2 3
Does Catholic education violate the U.S. Constitution’s religious‑freedom guarantees?
No, Catholic education does not violate the U.S. Constitution's religious-freedom guarantees; rather, it is affirmatively protected by the First Amendment's Free Exercise and Establishment Clauses, as affirmed in landmark Supreme Court decisions and longstanding Catholic teachings on parental rights and religious liberty. These protections recognize Catholic schools as essential expressions of faith formation, shielding them from discriminatory exclusion in public funding programs and safeguarding their ecclesiastical autonomy from undue government interference.
The U.S. Supreme Court has repeatedly upheld the constitutionality of Catholic education, striking down state attempts to undermine or exclude it as violations of religious freedom. In Pierce v. Society of Sisters (1925), the Court invalidated an Oregon law mandating public school attendance, affirming parents' fundamental right to direct their children's education in private, including religious, institutions. This decision established that "the child is not the mere creature of the state," protecting Catholic schools as vital to free exercise rights.
Building on Pierce, recent rulings have prohibited discrimination against religious schools in voucher or scholarship programs. In Espinoza v. Montana Department of Revenue (2020), the Court held that excluding religious schools from a state tax-credit scholarship program based on their religious status violates the Free Exercise Clause. Similarly, Carson v. Makin (2022) extended this protection, ruling that states cannot bar religious schools from aid programs due to their "religious use" of funds, ensuring Catholic schools—numbering nearly 6,000 nationwide—can participate without compromising their mission. These cases reject "no-aid" provisions like Blaine Amendments, which historically targeted Catholic schools, as unconstitutional discrimination.
Far from violating the Constitution, Catholic education thus embodies the neutrality required by the Establishment Clause while vindicating free exercise. States must treat religious schools equally, not suppress them.
Catholic education operates within the Church's hierarchical structure, which courts must respect to avoid unconstitutional entanglement. In briefs filed by the United States Conference of Catholic Bishops (USCCB), the Court is urged to apply the "ministerial exception" and constitutional avoidance principles when religious organizations like bishops' conferences or diocesan schools face subpoenas or restructuring demands that probe internal deliberations. For instance, compelling disclosure of bishops' discussions on moral issues—such as those informing Catholic educational advocacy—chills free speech, free exercise, and the right to petition, implicating hybrid First Amendment rights. Courts should construe discovery rules narrowly to sidestep these "serious constitutional questions," as in NLRB v. Catholic Bishop of Chicago.
Likewise, in property and liability disputes, civil courts cannot override canon law's separation of dioceses, parishes, and schools into distinct entities. Declaring all Catholic institutions a "single legal entity" for liability, as in Roman Catholic Archdiocese of San Juan v. Acevedo Feliciano, entangles courts in ecclesiastical questions like hierarchical control and doctrinal fidelity, violating neutrality and free exercise. Catholic schools, governed by canon law, enjoy autonomy to manage property and doctrine free from state-imposed uniformity.
Historical state constitutions reflect this harmony. Wisconsin's Article I guarantees worship freedom without religious tests or compelled support for any ministry, implicitly protecting Catholic education. New York's courts have upheld Christianity's role in public morality without establishing it, as in blasphemy and Sunday law cases, affirming religious education's place in society.
The Church's magisterium views parental rights in education as primordial, aligning seamlessly with constitutional guarantees. The Catechism of the Catholic Church (CCC) emphasizes parents as first educators, with the state respecting this duty (CCC 2229). Catholic schools adapt doctrine to form consciences, fostering faith's maturation without state coercion (CCC 23-24).
Religious freedom is an inalienable dignity, especially in moral and religious matters: "Man has the right to act in conscience and in freedom... Nor must he be prevented from acting according to his conscience, especially in religious matters" (CCC 1782). Freedom's exercise does not include dissent from truth but demands non-coercion (CCC 1747). If a state favors one religion civilly, all must enjoy freedom (CCC 2107). Thus, Catholic education—rooted in the Creed, sacraments, commandments, and prayer (CCC 13)—exercises this freedom lawfully.
The Church tolerates other beliefs where the true faith cannot prevail immediately, without granting error equal rights. In pluralistic America, Catholic schools thrive under this framework, promoting the common good without state dominance.
The USCCB actively supports school choice via philanthropy-driven scholarships like the Educational Choice for Children Act, open to Catholic schools without government intrusion into their mission. This counters laws forcing immoral complicity, as in Masterpiece Cakeshop, where religious objections to endorsing sin (e.g., redefining marriage) merit protection. Catholic education equips students against such pressures, embodying fidelity amid cultural challenges.
In sum, Catholic education upholds, rather than violates, constitutional religious-freedom guarantees by vindicating parental rights, ecclesiastical autonomy, and non-discriminatory neutrality. It invites all to deeper faith while respecting America's pluralistic order, as the Church has long navigated church-state relations prudently.