Preschool is no place to teach three- and four-year-olds to choose their own gender, but in Colorado, families choosing schools that share this belief are denied the state funding that all other families receive.
“I don’t subscribe to this ideology of choosing a child’s gender,” one father said, “but because of that, you’re excluding my family from education that they deserve.”
Colorado must soon defend this discrimination before the Supreme Court this fall.
When the state rolled out its Universal Preschool Program in 2023, Colorado provided up to $6,300 a year toward the preschool of a family’s choosing. Parents who couldn’t afford it suddenly had options — except Catholic ones.
To participate, a preschool must sign a nondiscrimination agreement on sexual orientation and gender identity, treating a child’s gender assertion as something adults should defer to, not something the school might otherwise decline to reinforce. Catholic preschools won’t sign it because it conflicts with church teaching on human sexuality and identity, so the state won’t let them participate.
The math is not abstract. Colorado has excluded roughly 1,500 children across 30 schools from a program their families’ tax dollars support. Enrollment at Catholic preschools has dropped one-fifth; at least two have closed. Families wanting a preschool that teaches their kids about Jesus now pay full freight, or give up altogether.
Dan and Lisa Sheley are one such couple. They have seven children, five enrolled at St. Mary’s in Littleton. The family pays out of pocket rather than give up a preschool they love. St. Mary’s, the Archdiocese of Denver, and the Sheleys sued and lost at both the district court and the Tenth Circuit, which held Colorado’s rule to be a neutral law of general applicability. The Supreme Court agreed to hear the case, St. Mary Catholic Parish v. Roy, to settle how far a state can go before a rule that looks neutral on paper counts as targeting religion in practice.
That question traces to Employment Division v. Smith, the 1990 decision holding that neutral, generally applicable laws don’t get special scrutiny for burdening religious exercise. States have learned to write rules that look neutral on paper but function as a religious sorting mechanism.
The Court has pushed back before: in Trinity Lutheran v. Comer, Espinoza v. Montana Department of Revenue, and Carson v. Makin, it held that once a state opens a public benefit to private options, it can’t slam the door on religious ones. Colorado’s program does what those cases forbid: it hands out public money for private preschool choice, then carves out certain religious choices.
Colorado has a track record of running roughshod over conscience. The state tried forcing a baker to design cakes for a same-sex wedding, and lost at the Supreme Court in Masterpiece Cakeshop. It tried forcing a website designer to build sites celebrating same-sex marriage, and lost again in 303 Creative. It tried compelling a Christian counselor to affirm gender transition in therapy rather than decline to counsel toward it, and lost again in Chiles v. Salazar. Colorado keeps drafting rules that burden religious objectors, and the Court keeps saying no. St. Mary’s is the preschool sequel.
Colorado isn’t fighting this quietly. One brief argues a religious exemption would create bureaucratic chaos, as if paperwork should outweigh a constitutional right. Another, from legal scholars, claims four-year-olds already carry LGBT identities fragile enough to be wounded by a parish preschool’s teaching and treats toddlers as fully formed adults only when it helps the state’s case. A brief from congressional Democrats prioritizes deference to the legislative branch over families’ wishes. Colorado’s defenders insist the program isn’t an individualized-exemption scheme, even as it carves out categorical priority for low-income kids and kids with disabilities — and the program’s own director explicitly said that schools serving only LGBT-identified kids, trans children, or children of a single race could take part. Those exemptions disappear the moment the preschool asking is Catholic.
Colorado’s own brief adds a few claims of its own. The state calls its equal-opportunity rule a health-and-safety standard in the same category as fire codes and immunizations, so no preschool can be excused from it. It dismisses any comparison between the exemption it claims St. Mary’s wants and the carve-outs already granted to low-income and disabled children, quoting a lower court that called it “farcical,” without explaining why Catholic faith deserves less accommodation than a diagnosis or a tax bracket. And the state’s own expert witness testified during trial that you never know when a child will embrace a gender identity different from their biological sex.
One doesn’t have to agree with Catholic teaching on human sexuality and identity to see the problem. A public benefit program is supposed to be neutral among ideas and identities, not a lever a state uses to pressure religious institutions into changing what they teach preschoolers about who they are. Conditioning public support for a child’s education on abandoning faith commitments isn’t neutrality. It’s a price tag on religious belief.
The Supreme Court will hear arguments later this fall. Given the Court’s recent Free Exercise rulings, Colorado should expect the same answer it’s gotten before: the Constitution doesn’t let government dangle a public benefit, then ask families to choose between taking it and keeping their faith.
***
Andrea Picciotti-Bayer is director of the Conscience Project. She filed an amicus brief with the Supreme Court on behalf of several Catholic families in Colorado.
