U.S. solicitor general urges Supreme Court to stop Colorado’s exclusion of Catholic preschools
U.S. Supreme Court will hear a case challenging Colorado’s exclusion of Catholic preschools from its universal preschool program. The U.S. solicitor general joined a coalition of 20+ states, 43 Republican members of Congress, and faith groups urging the court to rule that the exclusion violates the First Amendment. Catholic preschools argue Colorado’s policy forces them to abandon religious teachings about marriage, sexuality, and employment to receive public subsidies. A broad coalition, including the U.S. Conference of Catholic Bishops and the Becket Fund for Religious Liberty, filed 29 friend‑of‑the‑court briefs supporting the schools.
3 months ago
The U.S. Supreme Court will hear St. Mary Catholic Parish v. Roy, a case challenging Colorado’s rule that excludes Catholic preschools from its universal preschool program because the schools’ religious teachings on marriage, sexuality and employment conflict with state policy. The U.S. solicitor general, joined by more than 20 states and dozens of Republican lawmakers, argues that the rule violates the First Amendment’s Free‑Exercise Clause and imposes unconstitutional conditions on a public benefit. A broad coalition of religious, legal and education groups has filed dozens of amicus briefs in support of the schools, citing recent Supreme Court precedents that protect religious institutions from exclusion from government programs. The outcome could further define the constitutional protections afforded to faith‑based schools participating in public education initiatives. 1 2
Colorado’s universal preschool program requires participating schools to adopt state policies that the Catholic preschools say would force them to act against Catholic doctrine on issues such as marriage, sexuality and hiring practices. The state argues the requirement ensures uniform standards, while the schools contend it compels them to abandon core religious beliefs to receive funding. 1
The solicitor general’s brief asserts that Colorado’s exclusion:
More than 29 friend‑of‑the‑court briefs have been filed, including those from:
Parents Dan and Lisa Sheley expressed gratitude for the nationwide backing, emphasizing the perceived unfairness of denying Catholic families preschool subsidies. 1
The Supreme Court granted certiorari to hear the case this fall after the 10th U.S. Circuit Court of Appeals upheld Colorado’s policy in September 2025. The Becket Fund for Religious Liberty will represent the Catholic parishes and families. 2
The case follows several decisions that expanded religious‑freedom protections for schools, including:
A ruling in St. Mary Catholic Parish v. Roy could further clarify the scope of these protections for faith‑based educational institutions. 1 2
Does Colorado’s preschool exclusion violate the Catholic Church’s First Amendment rights?
Colorado’s exclusion of Catholic preschools (and, more broadly, religious preschools) from a generally available preschool program raises serious First Amendment Free Exercise and religious neutrality concerns. From a Catholic perspective on religious freedom, the Church’s educational mission should not be treated as a category eligible for aid only when it is “secularized” in practice. However, whether it definitively violates the First Amendment depends on the exact wording and operation of the Colorado program and the details of the legal challenge now before U.S. courts.
The Church teaches that religious freedom entails that no one should be “forced to act in a manner contrary to his own beliefs,” whether privately or publicly, and that this immunity is rooted in the dignity of the person and should be recognized in civil law.
Catholic teaching also treats education as a normal sphere for public expression of faith through institutions of Christian learning and charity—where the state should not intrude unjustly into how the Church orders its mission.
The Church teaches that parents are the first and primary teachers and have a fundamental right to choose the educational environment that corresponds to their convictions; public authorities must guarantee concrete conditions for that exercise, including access to public support where the law provides it.
A key theme in Catholic-advocacy legal reasoning is that the Free Exercise Clause forbids even “subtle departures from neutrality” toward religion, citing the Supreme Court’s insistence on neutrality.
A related argument (raised in a Catholic Church litigation context) is that when courts or governments create a rule “specifically for the Catholic Church” that departs from longstanding neutral civil law, it can violate the First Amendment’s protection against religious “special disabilities.”
In Catholic bishops’ policy/legal discussion of education funding cases, the U.S. Supreme Court is described as rejecting discrimination against religious schools and the families who attend them—especially where religious schools are excluded in ways that burden religious exercise.
That discussion specifically points to the trajectory of Supreme Court decisions criticizing so-called anti-religion “no-aid” rules and holding that denying benefits to religious schools (or families using public funds for religious schooling) can violate the Free Exercise Clause.
If Colorado’s program generally makes preschool slots/assistance available to eligible providers but categorically excludes religious providers (including Catholic preschools) solely because they are religious, that resembles the kinds of government benefit denials Catholic legal reasoning treats as unconstitutional under Free Exercise neutrality principles.
From the Church’s perspective, such an exclusion would also conflict with the Catholic conviction that parents should not be denied realistic access to educational choice consistent with conscience, and that the Church should be free to conduct educational work as part of its public mission.
Even if a program provides benefits in a neutral manner, the state can generally impose secular, generally applicable requirements related to safety, licensing, staffing qualifications, curriculum standards for publicly funded content, and child welfare. In that situation, the constitutional question becomes whether the program’s conditions are genuinely neutral and applied evenhandedly, or whether they effectively penalize religious identity or mission.
So, if Colorado’s exclusion is framed as a content/regulatory rule rather than a religious-status ban, the analysis will turn on facts such as:
A blanket exclusion of Catholic/religious preschools from a generally available preschool benefit program is very plausibly unconstitutional under First Amendment principles of religious neutrality and Free Exercise, and it runs against Catholic teaching on religious freedom, the public institutional expression of faith, and parental rights in education.
But a definitive “yes” on a First Amendment violation requires the precise program language and litigation record, because a state can still comply with the First Amendment if it regulates religious providers under neutral, generally applicable standards without imposing religious-status disabilities.