Supreme Court hears challenge to Catholic preschools' exclusion from
Colorado-funded program
[November 04, 2026]
By LINDSAY WHITEHURST and MICHAEL KUNZELMAN
WASHINGTON (AP) — The Trump administration joined the Archdiocese of
Denver on Tuesday in urging the Supreme Court to overturn a ruling
allowing a state-funded preschool program in Colorado to exclude Roman
Catholic schools that don't comply with equal-opportunity requirements —
the latest religious-rights case before the conservative-majority court.
A win for the Catholic preschools could further narrow a landmark 1990
Supreme Court decision that found religious practices don’t create
exemptions from laws that otherwise apply broadly. Written by
conservative icon Justice Antonin Scalia in a case over the spiritual
use of peyote, a cactus containing mescaline that’s sacred to many
Indigenous people, the decision has nevertheless long been a target of
the conservative legal movement.
The Denver archdiocese argues that it’s unconstitutional to exclude
Catholic preschools from the state's program over their admissions
policy for LGBTQ+ families. The Supreme Court heard arguments Tuesday on
the archdiocese's request to overturn a 10th Circuit decision in the
state's favor.
Colorado, meanwhile, says the refusal to admit kids from those families
would violate the state’s anti-discrimination law.
But St. Mary Catholic Parish and the archdiocese argue that the policy
is based on religious teachings about same-sex marriage and that
excluding them violates their free-exercise rights.
Nicholas Reaves, an attorney for the archdiocese, said allowing Catholic
schools to participate in Colorado's publicly funded preschool program
“will create more seats for everyone, even for families who disagree
with Catholic teachings.”
“This is not a zero-sum game," Reaves said. “Letting families use
universal preschool funding at Catholic schools won't take away a single
seat from the over 2,000 preschools already participating in the
program.”
President Donald Trump’s administration is supporting the Catholic
institutions. Justice Sonia Sotomayor, who was nominated to the court by
Democratic President Barack Obama, said the administration seems to be
arguing that children of same-sex marriage can be excluded because
“exposing" them to other students "creates a problem.”
"We have a clear line now and you want us to just upend it in one
particular area of law," Sotomayor told Justice Department attorney
Sarah Harris.
“No, I think the court currently has a mess,” Harris said.
In the Colorado case, the high court could be sympathetic to the
schools. The justices have sided with religious schools in similar
disputes before, ruling in recent years that they can’t be excluded from
programs in Maine and Montana that provide public aid to private
schools. In 2025, though, the court deadlocked over a plan to establish
a publicly funded Catholic charter school after Justice Amy Coney
Barrett recused herself.
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The Colorado universal preschool program was created by a 2020
ballot measure. It provides public funding for preschool at schools
chosen by parents.
The plaintiffs, represented by the group Becket Fund for Religious
Liberty, say the state has allowed other preschools to prioritize
children with disabilities or those from low-income families, so
admission based on religious beliefs about gender and same-sex
marriage should be allowed, too. The Catholic preschools say their
enrollment has dropped 20% since the program started.
Colorado argues that the other admissions decisions are in line with
the state’s anti-discrimination rules.
Sotomayor asked Reaves if the Catholic school can reject a child
simply because their parents are a same-sex couple.
"Is that the bottom line?” she asked.
“If it's the sincere religious exercise of the petitioner, then I
think that would be permitted,” Reaves said.
Helen Norton, an attorney for the state, said Colorado is “neutral
toward religion” and welcomes religious preschools to participate in
the program — provided that they comply with the same conditions
that every publicly funded preschool must meet.
“Under this program, faith-based preschools remain free to teach
their religious beliefs, including their beliefs about sex or gender
or marriage,” Norton said. “But families have no right to change a
school's curriculum.”
Justice Brett Kavanaugh, who was nominated to the court by Trump, a
Republican, suggested Colorado's law has created an unnecessary
“clash of rights” between LGBTQ+ families and "religious believers."
“Just trying to figure out why we're here,” Kavanaugh told Norton.
”Why has this been provoked when there's an ability for everyone to
go to the school, a good school that's a fit for them, and respect
religious rights?"
Norton said preschools aren't “interchangeable” for parents and
children.
“Families are harmed when they're turned away from the publicly
funded school that makes their lives work because of the protected
class status,” she said.
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