Top takeaways

• U.S. Solicitor General John Sauer filed an uninvited friend-of-the-court brief urging the Supreme Court to take up a case involving Catholic preschools that were excluded from Colorado’s universal preschool funding program because of their religious beliefs.

• The case stems from a 10th Circuit ruling that upheld Colorado’s requirement that participating preschools sign a nondiscrimination agreement that the Catholic schools argue conflicts with Church teachings on sexual orientation and gender identity.

• Represented by the Becket Fund for Religious Liberty, the preschools argue the policy forces religious schools to choose between funding and faith, raising concerns about government exclusion of religious institutions from public benefit programs.

• In addition to Sauer’s brief, multiple states, religious groups, and families have filed amicus briefs in support of the preschools. The court is expected to decide this spring whether it will hear the case.

More details

John Sauer, the U.S. solicitor general, filed a friend-of-the-court brief with the U.S. Supreme Court Jan. 30 and called for the justices to protect Catholic preschools in Colorado from being excluded from the state’s universal preschool funding program because of their religion.

In the filing, Sauer wrote that “the government’s decision to file an uninvited certiorari-stage amicus brief reflects its views about the severity of the court of appeals’ error, the recurrence of the question presented, and the significant benefit that further clarity in this area of the law would provide to the lower courts, federal and state governments, and the public.” 

Principal Deputy Solicitor General Sarah Harris and Assistant to the Solicitor General Emily Hall also joined in the brief, which urges the Supreme Court to agree to hear the case and follows a September 2025 ruling in St. Mary Catholic Parish v. Roy from the 10th Circuit Court of Appeals. The appeals court held that two Catholic preschools seeking to be included in the state’s funding program would have to sign a nondiscrimination requirement that violates their religious beliefs, Zeale News previously reported.

“The preschools argued the nondiscrimination agreement would force them ‘to consider the sexual orientation and gender identity of a student and their parents before admitting them to a Catholic school,’” Zeale News reported at the time. 

While the preschools do not explicitly bar the children of parents in same-sex relationships from admission, the schools noted that the Archdiocese of Denver does not recognize such relationships and raised concerns that admitting the children would lead to “intractable conflicts.”

In a Feb. 2 press release from the Becket Fund for Religious Liberty, the legal organization representing the preschools, senior counsel Nick Reaves stated that Sauer’s filing “signals to the court just how egregious, illegal, and dangerous Colorado’s discrimination is.”

“The state is labeling a program ‘universal’ and then banning religious families and schools from it because of their faith,” he continued. “If that kind of exclusion is allowed to stand, no religious group is safe from being pushed out of public life.”

Becket Fund attorney Eric Rassbach echoed Reaves’ concerns in a post on X, saying that the “rare” uninvited filing demonstrates the “serious legal and constitutional concerns raised by Colorado’s religious discrimination.”

As Zeale News previously reported, several religious groups, states, families, and others filed friend-of-the-court briefs in December in support of the Catholic preschools. Reaves expressed appreciation for the filings in the release and added, “We’re grateful the Solicitor General recognized what’s at stake here and added his voice to a growing chorus urging the Supreme Court to hear this case.”

According to the release, the Supreme Court will likely decide in the spring whether to take the case.