U.S. solicitor general says Colorado should not deny Catholic preschools early education funds

WASHINGTON (OSV News) — A case before the U.S. Supreme Court urging the court to stop Colorado from excluding Catholic preschools and families from the state’s “universal” funding now has federal support.

On Jan. 30, Solicitor General D. John Sauer filed a friend-of-the-court brief urging the court to stop Colorado from excluding Catholic preschools and families from the state’s “universal” preschool funding program.

“The United States has a substantial interest in the preservation of the free exercise of religion,” the brief states. “It also has a substantial interest in the enforcement of rules prohibiting discrimination by government funding recipients.”

The suit, St. Mary Catholic Parish v. Roy, names as defendants Lisa Roy, executive director of the Colorado Department of Early Childhood, and Dawn Odean, director of Colorado’s Universal Preschool Program.

The Becket Fund, a Washington-based religious liberty law firm that first filed the suit in 2023, is representing St. Bernadette Catholic Parish and St. Mary Catholic Parish in the Denver suburbs of Lakewood and Littleton, respectively, and the Archdiocese of Denver.

Colorado officials created the program in 2022. Parents can apply for the program, which gives 4-year-olds, the year before they are enrolled in kindergarten, 10 hours a week of tuition-free preschool, which can be in public school classrooms or private settings such as churches.

The lawsuit singles out the requirement that preschool providers “accept any applicant without regard to a student or family’s religion, sexual orientation, or gender identity, and to prohibit schools from ‘discriminat(ing) against any person’ on the same bases.”

But “these requirements directly conflict with St. Mary’s, St. Bernadette’s, and the Archdiocese’s religious beliefs and their religious obligations as entities that carry out the Catholic Church’s mission of Catholic education in northern Colorado,” the suit stated.

In accordance with their beliefs, the two Catholic parish schools “give priority to Catholic families seeking to ensure their children receive a Catholic education,” including families from their own congregations” but also welcome Catholic families active in other local parishes and Catholic families who recently moved to the Denver area, the suit states.

The U.S. Court of Appeals for the 10th Circuit upheld Colorado’s position in St. Mary Catholic Parish v. Roy in a Sept. 30 ruling, and Becket filed an appeal with the U.S. Supreme Court Nov. 13. The case is expected to be on the Supreme Court docket this spring. A Becket statement said the state is “punishing faith-based preschools and the families they serve for operating consistent with their beliefs.”

The solicitor general’s brief says the 10th Circuit “seriously erred in adopting a rule that would treat countless laws as generally applicable, no matter how many secular or discretionary exemptions they contain, so long as those exemptions do not permit the exact same conduct as the religious exercise at issue.”

And it also frames a larger issue of how such cases should be decided.

“This oft-recurring question about what framework governs Free Exercise challenges — rational-basis review of neutral, generally applicable laws or strict scrutiny of selective ones — is exceptionally important. And this case is an excellent vehicle for deciding the question presented.”

In addition to the solicitor general’s brief, 20 other friend-of-the-court briefs, including one from the Thomas More Society, have been filed at the Supreme Court in support of the parents and preschools.

“Colorado is forcing families to choose between their faith and access to a generally available school choice program — which is no real choice at all,” Michael McHale, senior counsel at the Chicago-based Thomas More Society, said in a statement provided to OSV News.

“In our amicus brief, we show that the lower court wrongfully treated deeply held religious beliefs like any mere personal preference to be disregarded at the state’s whim,” McHale said. “If left in place, this ruling gives states a blueprint to exclude religious parents and schools from school choice programs while claiming to be ‘neutral.'”

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