Supreme Court weighs if Colorado preschools must admit kids of same-sex couples

The Supreme Court will hear oral arguments Tuesday on whether Colorado can require preschools that accept public dollars to admit the children of same-sex couples.

It’s the latest battle at the intersection of religious and LGBTQ rights to reach the justices.

The Archdiocese of Denver, a group of Catholic parishes and parents Daniel and Lisa Sheley challenge Colorado’s antidiscrimination mandate under the First Amendment.

“The inevitable result of Colorado’s thumb on the scale is that more Colorado children will be funneled toward preschools that share Colorado’s perspective on matters of sex and marriage,” they wrote in court filings.

Coincidentally, the high-stakes arguments land as millions of Americans head to the polls on Election Day, with voters in several states set to consider LGBTQ-related ballot measures.

A decision in the Colorado case is expected by summer.

First implemented in 2023, Colorado funds 15 hours of universal pre-K per week for each eligible child. Parents can choose where to send their child, and more than 2,000 preschools applied to participate in the program this year.

Participating schools must agree to provide families an “equal opportunity” to enroll regardless of various criteria, including sexual orientation and gender identity.

That’s a problem for St. Mary Catholic Parish, the preschool leading the charge at the Supreme Court.

Before enrolling a child at the school, parents must sign a statement of “Community Beliefs and Commitments.” It requires families to “display a positive and supportive attitude toward the Catholic Church” and its teachings, including its stances against abortion and same-sex marriage. Families “must refrain from public promotion or approval of any conduct” that would discredit those teachings.

Colorado contends its mandate is constitutional and the school should be forced to comply if it wants to receive public funds.

“Whatever a family’s publicly funded preschool options—however many or few—Colorado seeks to ensure those options are not limited by that family’s protected-class status,” the state wrote in court filings.

Colorado’s LGBTQ protections don’t have a great track record before the conservative-majority Supreme Court. In recent terms, the justices ruled for a counselor who challenged the state’s “conversion therapy” ban and a website designer and cake baker who separately challenged Colorado’s mandate that they perform their work for same-sex weddings, too.

The newest case is legally distinct from those battles, however. The preschool dispute provides the court a chance to narrow a key 1990 Supreme Court precedent that several of the court’s conservatives have criticized for being incompatible with religious liberty.

The archdiocese hopes the court will do so. Preschool enrollment has already declined almost 20 percent across the archdiocese since Colorado began its universal pre-K program, court filings indicate.

Represented by the Becket Fund for Religious Liberty, the archdiocese points to how the state allows preschools that specifically serve low-income families and students with disabilities to participate.

“Petitioners have no objection to Colorado’s decision to allow over 1,000 UPK preschools to selectively serve the communities they are designed to serve—Petitioners simply want the same accommodation extended to them,” the group wrote in court filings, using an acronym for universal pre-K.

It’s an argument backed by roughly 20 Republican-led states, nearly four dozen Republican members of Congress, the Union of Orthodox Jewish Congregations of America and a handful of other religious groups. The Trump administration also agrees and will argue the case alongside the schools on Tuesday.

Colorado’s defense, meanwhile, is supported by the NAACP Legal Defense and Educational Fund, nearly 180 Democrats in Congress, LGBTQ advocacy groups and the Freedom From Religious Foundation.

“Petitioners’ theory, at its core, threatens to replace the considered judgment of legislatures with ad hoc exemptions. That would permit litigants to become laws unto themselves,” the lawmakers wrote to the justices.