The Supreme Court heard oral arguments Tuesday in St. Mary Catholic Parish v. Roy, a case challenging Colorado's universal preschool program. The state created the program in 2022 to fund up to 15 hours weekly of preschool per child at participating schools, including private institutions. Schools must agree to provide eligible children equal opportunity to enroll regardless of religious affiliation, sexual orientation, and gender identity to qualify. Colorado excludes schools that reject these provisions, saying the requirement protects LGBTQ children and families.
The Archdiocese of Denver, two Catholic parishes, and two parents sued, arguing the policy unconstitutionally excludes religious schools because of their beliefs and practices. A Tenth Circuit panel ruled for the state, finding that Colorado welcomed religious schools under the same nondiscrimination requirements applied to all providers.
During oral argument, conservative justices questioned Colorado's approach. Justice Kavanaugh asked why Colorado could not accommodate both universal pre-K and religious liberty, noting the state has over 2,000 preschools, of which only 34 are Catholic. He suggested Colorado's policy created "an unnecessary clash" when alternatives existed. Deputy Solicitor General Helen Norton responded that preschools are not interchangeable because families need schools with specific hours, sibling accommodations, or convenient locations.
Justice Barrett asked whether any same-sex parents had actually tried to enroll children at Catholic preschools and been turned away. Norton cited one example involving a 5th grader, which Barrett noted was not preschool age.
Several justices expressed concern that Colorado's policy violated the Court's 2022 decision in Carson v. Makin, which barred Maine from excluding religious schools from a tuition program. Chief Justice Roberts noted "the effect of the law in Carson is pretty much the same as the effect of the law here." Justice Gorsuch suggested Colorado was doing indirectly what it could not do directly.
Kavanaugh also pressed Norton on why Colorado permitted other school exceptions, such as vegetarian or single-sex preschools, while refusing to accommodate Catholic schools' religious policies. Justice Alito suggested Colorado's position would allow the state to forbid Muslim women from wearing head coverings as teachers, which would obviously discriminate against Muslims.
The oral arguments suggest the conservative justices are skeptical of Colorado's position. Colorado has lost multiple First Amendment cases at the Supreme Court over the past decade, including Masterpiece Cakeshop v. Colorado Civil Rights Commission in 2018, 303 Creative LLC v. Elenis in 2023, and Chiles v. Salazar last term.