Religious Rights Hit Funding Wall

A wooden gavel resting on a block next to a cross necklace — Photo: New Africa / Shutterstock

The Supreme Court will decide if a state can make faith-based preschools choose between public funds and church doctrine.

Story Snapshot

Colorado’s universal preschool money comes with a nondiscrimination promise on sexual orientation and gender identity.
Catholic preschools say that promise clashes with their beliefs and violates the First Amendment.
Colorado says faith-based schools are welcome if they follow the same rule as everyone else.
Lower courts backed Colorado; the Supreme Court will now hear the case.

What the case is really about

Colorado offers free preschool hours to families statewide. Schools that join must sign a nondiscrimination agreement that bars turning away children or families based on sexual orientation or gender identity, among other traits. The Archdiocese of Denver and two Catholic parishes say they cannot sign that promise without breaking church teaching on marriage and gender. They argue the state’s condition punishes their faith and violates the Free Exercise Clause. Colorado responds that religious schools can teach their faith and still treat families equally at the door.

The Tenth Circuit sided with Colorado. The court said the program does not exclude religion, since faith-based providers can and do participate. It described the rule as neutral and generally applicable to all who take public funds. The American Civil Liberties Union of Colorado echoed that view, saying the First Amendment does not require exemptions from a uniform, secular rule when the state funds a public service. The Supreme Court granted review, and filings show both sides think recent church-state rulings help them.

How this fits the Supreme Court’s playbook

Recent Supreme Court cases favored religious groups when the government excluded them because they were religious. In Trinity Lutheran, the Court said Missouri could not deny a church-run preschool a playground grant based on religious status. Espinoza and Carson extended that logic to school choice funds, cutting back rules that wall off faith schools from public benefit programs. Colorado says this case is different. The state is not blocking religious status. It is enforcing a conduct rule that applies to everyone who takes the money.

The Catholic schools say that line is too neat. They argue the rule forces them to change how they run a faith-based community, including admissions tied to their beliefs about family and gender. They claim that is not neutral in practice, because it strikes at the heart of their religious exercise, and triggers the highest constitutional test. This dispute asks the Court to draw a clearer line between bans on religious “status” discrimination and demands that target religious “use” or practice in the real world.

What happens to families and schools on the ground

Colorado points to many faith-based preschools already in the program to show the door is open when providers agree to equal enrollment access. A federal judge earlier allowed religious schools to consider religion in enrollment, but barred exclusion based on sexual orientation, gender identity, race, ethnicity, income, or disability. State officials say they cannot carve out an exception to that civil rights rule because the legislature wrote it into law. The question is whether the Constitution requires that exception anyway.

Religious liberty is back at the Supreme Court. On Tuesday the justices will hear Catholic preschools in Colorado that say the state shut them out of its free preschool program because of their faith.

Colorado offers every 4 year old up to 15 hours of free preschool a week,… pic.twitter.com/51NPcTAUeu

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Parents want simple answers: Can my child enroll near home? Can my faith community join without giving up its mission? Taxpayers want fairness: If public money follows the child, should any provider that takes it follow the same rules? Common sense says public dollars should come with clear, even rules. It also says government should not tell churches how to be churches. The Court must decide which of those values gives way, and by how much.

What to watch in oral argument

Expect questions about whether the nondiscrimination term is truly neutral or if it maps onto religious beliefs in a targeted way. Watch for comparisons to Trinity Lutheran and Carson, and whether the justices view this as a status case or a use case. Listen for practical fallout: If Colorado must exempt these schools, how many other public programs must carve out similar religious exceptions? If the state prevails, how far can governments press identity-based conditions before they burden faith practice?

The stakes go beyond preschool. Public-private partnerships in child care, health care, and social services all hinge on contract terms. A ruling for Colorado could lock in strong enforcement of identity-based protections across funded programs. A ruling for the Catholic schools could require governments to tailor civil rights rules when they collide with sincere doctrine. Either way, lawmakers will need to write cleaner statutes, and agencies will need to show real flexibility where the Constitution demands it.