WSJ board urges SCOTUS to defend Catholic schools in Colorado preschool case as justices hear oral arguments

The U.S. Supreme Court’s conservative majority signaled receptiveness Nov. 3 to arguments that Colorado’s universal preschool program unconstitutionally discriminates against Catholic schools by conditioning funding on rules that the schools say conflict with their religious beliefs on marriage and sexuality.

A day earlier, the Wall Street Journal editorial board urged the justices to protect the schools’ access to the program, arguing that Colorado is revisiting a constitutional question the court has repeatedly settled.

“This is getting old,” the board wrote in its Nov. 2 editorial. “Three times in the past decade the Supreme Court has vindicated religious schools excluded from state programs. Colorado still needs a remedial lesson.” 

Colorado’s universal preschool program, launched in 2023, provides 15 hours of free preschool weekly to both public and licensed private schools, including religious schools. The assistance averages about $6,300 annually per child, according to the Catholic plaintiffs’ Supreme Court brief.

To receive the funds, participating schools must agree to a nondiscrimination policy that offers equal enrollment without regard to religious affiliation, sexual orientation, and gender “identity.” The Catholic plaintiffs argue that those conditions conflict with their requirement that families support their schools’ religious mission and the Church’s teachings on marriage and sexuality. 

After the state denied a religious exemption, the Archdiocese of Denver, two Catholic parishes, and two parents sued. A federal district court ruled against their challenge to the sexual orientation and gender identity requirements, and the U.S. Court of Appeals for the Tenth Circuit affirmed that ruling. The Supreme Court agreed April 20 to hear the case, known as St. Mary Catholic Parish v. Roy. 

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The Journal’s editorial board pointed to three decisions protecting religious institutions’ access to public benefits: Trinity Lutheran v. Comer (2017), involving playground funding; Espinoza v. Montana Department of Revenue (2020), involving tax-credit scholarships; and Carson v. Makin (2022), involving tuition assistance.

The board argued that Colorado cannot escape those Supreme Court precedents merely by adopting rules that do not explicitly single out religion. Requiring schools to abandon religious practices to receive funding, it said, still penalizes them for following their faith.

“The Justices have said three times lately that states can’t deny religious families the benefits given to everyone else,” the board wrote. “Once more, with gusto.”

Justices appear to favor Catholic plaintiffs in oral arguments

During oral arguments, several of the conservative justices raised concerns that Colorado’s enrollment requirements indirectly exclude schools because of their religious beliefs,

“You agree, don't you, that Colorado could not say that Catholic schools or evangelical schools or Orthodox Jewish schools were excluded from participation in the UPK program?” Justice Amy Coney Barrett asked Colorado Deputy Solicitor General Helen Norton. 

“Then explain what the difference is between that and choosing to impose a condition that you know that those schools would be unable to agree to,” Barrett said, suggesting that the requirement serves to “push out” schools with traditional beliefs.

Justice Brett Kavanaugh questioned Colorado’s refusal to grant an exemption, contrasting the program’s more than 2,000 participating preschools with the 34 Catholic preschools the Archdiocese of Denver oversees. 

“There are plenty of opportunities to respect the rights of the religious believers and respect the ability of LGBT parents to find among the 2,000 schools an appropriate fit for their children,” Kavanaugh said.

Justice Samuel Alito pointed to Colorado’s previous Supreme Court losses in First Amendment disputes involving a Christian baker, website designer, and counselor, saying they have seen “the state’s record” in those cases.

“What should we make of this?” he asked.

The three liberal justices questioned whether the Catholic plaintiffs sought preferential treatment that would allow them to discriminate against families based on their protected characteristics.

The court is expected to issue a decision by the end of its term, typically in late June.