The U.S. Supreme Court has agreed to hear a case that could reshape the intersection of religious liberty, anti-discrimination law, and public funding for early childhood education. At issue is whether Catholic preschools in Colorado that refuse to enroll children of same-sex couples can continue to receive state subsidies under a universal pre-K program. The dispute centers on a conflict between the state’s efforts to expand access to early education and claims by religious institutions that forcing them to admit LGBTQ+ children violates their constitutional rights to free exercise of religion.
The case, Lori Smith v. Colorado Department of Early Childhood, originated after Colorado launched its Universal Preschool Program (UPK) in 2023, offering up to 15 hours per week of free preschool to all 4-year-olds in the state. Participating private providers, including faith-based schools, must comply with state non-discrimination policies as a condition of receiving public funds. However, several Catholic parishes argued that being required to admit children of same-sex couples compels them to act contrary to their religious teachings on marriage and family, prompting a legal challenge that has now reached the nation’s highest court.
Oral arguments are scheduled for the Court’s upcoming term, with a decision expected by mid-2025. The outcome could set a significant precedent not only for Colorado’s preschool initiative but also for similar programs in other states grappling with how to balance public accommodation laws with religious exemptions in taxpayer-funded services.
Background: Colorado’s Universal Preschool Program and the Religious Objection
Colorado’s Universal Preschool Program was established under Senate Bill 22-123, signed into law by Governor Jared Polis in May 2022. The legislation created the Department of Early Childhood and allocated $322 million in state funding to support universal access to preschool for children in the year before kindergarten. By the 2023–2024 school year, over 30,000 children were enrolled in the program across approximately 1,800 participating providers, according to state data released by the Colorado Department of Early Childhood.
To participate, private providers—including religious schools—must sign agreements pledging not to discriminate based on race, ethnicity, religion, gender, sexual orientation, or gender identity. The state contends that these conditions are necessary to ensure equitable access to public benefits. However, representatives from the Archdiocese of Denver and several Catholic parishes argued that the non-discrimination requirement forces them to violate core tenets of Catholic doctrine, which defines marriage as a union between one man and one woman and holds that same-sex relationships are incompatible with Church teaching.
In 2023, the state barred several Catholic preschools from the UPK program after they declined to enroll children of same-sex couples. The affected institutions, including St. Mary’s Parish School in Littleton and Holy Family Catholic School in Colorado Springs, filed suit, claiming the exclusion violated their First Amendment rights to free exercise of religion and free speech. A federal district court initially ruled against the schools, but the U.S. Court of Appeals for the Tenth Circuit reversed in part, finding that the state’s application of the non-discrimination policy may not be neutral or generally applicable toward religious entities—a key threshold under Employment Division v. Smith (1990) and reinforced in Fulton v. City of Philadelphia (2021).
Legal Arguments: Religious Liberty vs. Public Access
The Catholic preschools’ legal team, led by attorneys from the Alliance Defending Freedom (ADF), argues that Colorado’s policy impermissibly targets religious belief by conditioning public benefits on adherence to secular views of family and sexuality. They cite Fulton, in which the Supreme Court unanimously ruled that Philadelphia could not refuse to contract with a Catholic foster care agency unless it certified same-sex couples as foster parents, noting that the city’s policy contained exemptions that undermined its claim of neutrality. The plaintiffs contend that Colorado’s UPK program similarly lacks true neutrality because it allows exemptions for other entities while denying them to faith-based schools based on religious motivation.
Colorado’s defense, led by the state Attorney General’s office, maintains that the UPK program is a neutral, generally applicable condition of receiving public funds and does not regulate religious belief or practice—only conduct in the administration of a state-funded service. The state argues that Fulton does not apply because Colorado’s policy does not contain a system of individualized exemptions; rather, it sets uniform rules for all providers seeking public money. They further assert that allowing religious exemptions would undermine the program’s goal of universal access and open the door to widespread discrimination in taxpayer-funded education.
The Biden administration filed a friend-of-the-court brief supporting Colorado, emphasizing that states have broad authority to attach anti-discrimination conditions to public benefits, particularly in education. Conversely, over 20 Republican-led states filed briefs backing the preschools, warning that a ruling against them could jeopardize faith-based participation in other public programs, from school lunch initiatives to disaster relief grants.
Stakeholders and Real-World Impact
The case directly affects hundreds of families seeking preschool placements in Colorado, particularly in rural or conservative areas where faith-based providers may be among the few available options. Advocacy groups such as LGBTQ+ advocacy organization One Colorado and the Colorado Children’s Campaign have expressed concern that allowing religious exemptions could create unequal access to early education, disproportionately impacting children of same-sex couples who may face stigma or denial of service despite legal protections.
On the other side, Catholic educators and parents argue that forcing religious schools to act against their convictions risks driving them out of the public system entirely, reducing overall preschool capacity. Sister Gemma Del Duca, Ph.D., a scholar of Catholic education at Saint Vincent College, noted in a 2023 interview with America Magazine that “the tension isn’t just about policy—it’s about whether religious communities can participate in public life without compromising their identity.” While not a party to the case, her remarks reflect broader concerns among faith-based educators about the long-term viability of religious institutions in publicly funded spaces.
If the Court rules in favor of the Catholic preschools, it could prompt other states with universal pre-K or similar programs to revisit their non-discrimination requirements. Conversely, a ruling upholding Colorado’s approach would reinforce the principle that public funding comes with public obligations, even when those obligations conflict with religious doctrine.
What Happens Next
The Supreme Court is expected to hear oral arguments in Lori Smith v. Colorado Department of Early Childhood during its October 2024–April 2025 term, though no specific date has been set as of this writing. A decision is anticipated by late June 2025, coinciding with the end of the Court’s current term. Until then, Colorado’s Universal Preschool Program continues to operate under its existing non-discrimination rules, and the affected Catholic preschools remain ineligible for state funding unless they modify their enrollment policies or prevail in litigation.
Readers seeking updates can monitor the Supreme Court’s official docket via the Court’s website or follow filings through the Colorado Department of Early Childhood’s news page here. Legal documents and briefs are also available through the SCOTUSblog case page here.
This case touches on fundamental questions about pluralism, public trust, and the limits of tolerance in a diverse society. As the nation watches, the outcome may not only shape access to preschool but also influence how religious institutions engage with public programs for years to come.
We invite readers to share thoughtful perspectives in the comments below and to share this article with others interested in the evolving balance between religious liberty and equal access to public education.