Supreme Court Appears Likely To Teach Colorado It Can’t Discriminate Against Catholic Schools For Not Compromising Values

The U.S. Supreme Court appears likely to rule in favor of Catholic preschools in Colorado after hearing oral arguments Tuesday that their being barred from the state’s Universal Preschool Program over religiously influenced admission requirements violates the First Amendment.

Thomas Wong · Nov 3, 2026 · 12 min read

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Supreme Court Appears Likely To Teach Colorado It Can’t Discriminate Against Catholic Schools For Not Compromising Values

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Colorado, the plaintiffs argue in their petition, “knowingly excluded Catholic preschools solely on account of their religious exercise,” in particular “their religious practices of ensuring that all enrolling families are supportive of the Catholic Church’s teachings on sex and marriage and of treating enrolled four-year-olds in accordance with their biological sex.”

Being forced to violate one’s religious conscience to access the public benefit, then, they continue, is an imposition on the ability to freely exercise religion, a violation of constitutional pprotections. Notably, the “record is devoid of a single instance of an LGBTQ family’s seeking admission” to any of the plaintiffs’ schools.

Acknowledging “the settled principle that government may not target religion for disfavored treatment,” Colorado, responding in its own brief, counters by claiming the preschools are pursuing a “new rule that would trigger strict scrutiny whenever public-benefits conditions incidentally burden religiously motivated conduct.”

While it offers exemptions for disabled and impoverished children, for example, the state challenges the possibility of public funds subsidizing religious discrimination against children in LGBTQ-identifying families.

Ahead of oral arguments, the Court limited the scope of the case being argued to two questions. The first asks if proving a law lacks neutrality under the Constitution’s Free Exercise Clause requires allowing absolute authority or exemptions for identical secular conduct. The second asks if the rule against excluding religious institutions from public benefits applies only to explicit government bans on their participation. Central to these questions are two landmark cases previously decided by the Supreme Court.

The 6-3 majority opinion in Employment Division v. Smith, written in 1990 by conservative Justice Antonin Scalia, states that the Free Exercise Clause does not exempt an individual from complying with a neutral law merely because it happens to brush against a religious practice. The 6-3 majority opinion in Carson v. Makin, written in 2022 by conservative Chief Justice John Roberts, determined that while a state is not required to subsidize private education, doing so through a tuition assistance program cannot disqualify such schools solely over their religious character or instruction.

“I would just want to focus on your main argument, which is, even though religious people are being treated the same way on the face of the statute, that’s not enough. They need a special accommodation,” Justice Elena Kagan, a 2010 appointee of former President Barack Obama, stated. “They need to be treated differently from other people … because of their religious faith, to have a special accommodation.”

“[Y]ou can imagine situations where the government is keeping out religious schools, but it’s not using the word ‘religion’ or the word ‘sectarian,'” Reaves replied in part before Kagan claimed, “I think it would be a bit far-fetched to say that the government is doing this surreptitiously to get at religious schools.”

Justice Ketanji Brown Jackson, a 2022 appointee of former President Joe Biden, then probed, “[I]t seems to me you’re asking for a special rule for religious schools, that when Colorado says anyone who receives these funds has to be open to everyone and can’t discriminate, what you’re asking for, in the context of this Free Exercise claim, is a special rule for religious schools to be able to not follow that condition … or no?”

“[A]t the end of the day, we are seeking the same thing that lots of other schools are allowed to do. Over 1,000 other schools participate in the program— ,” Reaves began to reply before Jackson questioned why Colorado’s participation agreement requirement was considered by the plaintiffs to be discrimination. Reaves then recalled previous reasoning by the Court. “[W]hat this Court said was, if there’s a sincere religious exercise that’s being burdened, the government has to show a really good reason for doing that.”

Justice Sonia Sotomayor, a 2009 appointee of Obama, fixated on the Church’s teachings on sexuality, rather than any explicit denial by Colorado, as the reason why the plaintiffs were not joining UPK.

“The Catholic schools are not being excluded on their face. They’re choosing not to participate because they won’t get an exemption, correct?” she challenged. “So this is their choice.”

Continuing after Reaves argued “[t]hey’re being excluded by Colorado, Sotomayor said, “Well, no, because Colorado permits them to apply if they will accept all children. They’re saying, ‘We don’t want to accept the children of a certain class of people, homosexual people.’ … Colorado is not saying, ‘You have to teach equality.’ It’s not saying, ‘You have to teach it’s OK to be homosexual.’ You don’t have to … change your values in any way. You can teach whatever it is you want to teach, but if parents choose to subject their children to this teaching, you have to acceot that child. Is that correct?”

After Reaves began to respond that, “for the Catholic Church, it’s not about excluding anyone based on who they are,” Sotomayor countered.”They’re saying, ‘We’ll exclude your children if their parents are homosexual, because their parents are doing something we don’t agree with.'”

“Your Honor, it is a case-by-case determination at the end of the day. These families can come, and I also think it’s telling that, you know, since this program has began and even before this program, families who disagree with the Catholic Church’s teachings are not banging down the door to try to enroll in,” he later responded in part. “[A]t the end of the day, this is a benefit for families. This is not a benefit that goes to the school. This is a per capita benefit.”

On the other hand, Justice Amy Coney Barrett, a 2020 appointee of President Donald Trump, notably prefaced a question by referencing “the history of disputes that have been in front of this Court between Colorado and religious entities” featuring “religious objections to this kind of non-discrimination mandate in the case of traditional religious beliefs about sexuality and gender.”

“But Colorado does say in its brief that the Archdiocese (ph) objections caught it by surprise, that they didn’t see them coming,” she continued. “So I wondered … given the history that I just described, [it is] kind of surprising that … they were caught by surprise. It’s hard to see how this wasn’t seen coming.”

“I think the way that Colorado tries to explain why they were caught by surprise is because Catholic schools had participated in prior programs with somewhat similar nondiscrimination requirements,” Reaves later clarified, “[B]ut, I mean, the record is clear that they’re different in that they don’t cover enrollment; they don’t cover certain protected characteristics. So I think Colorado’s argument is turning on the fact that there are some instances where Catholic schools have signed a nondiscrimination requirement.”

“[G]iven the fact that this Court is never going to really question the sincerity of anybody’s beliefs, it’s going to be pretty easy for religious groups or religious individuals to come forward and say, ‘This would be a substantial burden on my religious belief or on my religious practice,'” she posed to Norton. “So then, again, everything’s going to be about ‘How important is this religious belief to you,’ versus ‘How important is this interest here in nondiscrimination law to the state?’ And, again, that seems like an inquiry that the Court, like, ought to be thinking, ‘Why would we put ourselves in the middle of that in all these cases? With respect to public schools alone, these inquiries could go on forever.”

Among the outside parties who submitted amicus briefs in support of the plaintiffs were the U.S. solicitor general, the U.S. Conference of Catholic Bishops (USCCB), and 43 congressional Republicans; 179 congressional Democrats, meanwhile, filed a brief supporting Colorado. Notably, one of the involved parties, Denver Archbishop James Golka, joining with other Catholic bishops, met with and prayed over Trump in the Oval Office on Oct. 22. He later expressed regret over the perceived politicization of how the encounter was publicized.

“Colorado’s exclusion has taken a toll,” Golka wrote Oct. 26 in The Denver Post. “Catholic parents have been forced to pay thousands of dollars out of pocket–while watching their neighbors get state money to attend schools with different religious beliefs. Other families, unfortunately, have had to pull their children from Catholic preschool, citing the cost. It is thus no surprise that our preschools are struggling.”

“Since UPK began, enrollment is down 20% across the archdiocese, and two of our preschools have closed their doors—including Wellspring Catholic Academy, which primarily served minority and low-income families,” Golka added.

“Yet the tragedy here is not merely measured in dollars and cents,” he continued. “Colorado’s attack on Catholic education threatens the broader culture. In our age of hyper-secularization, moral relativism, and technological reductionism, we urgently need schools that teach students who they truly are: immortal souls, beloved by God, capable of the good and the virtuous. Too often today our society teaches them the opposite.”

Archbishop Golka did not respond to a request for comment from the Daily Caller News Foundation. Furthermore, the chairman of the USCCB Committee on Catholic Education declined to be interviewed.

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