Editor’s note: This story first appeared at The 74, a nonprofit news site covering education. Sign up for free newsletters from The 74 to get more like this in your inbox.
Four years ago, the U.S. Supreme Court issued a landmark ruling that said states can’t exclude faith-based schools from choice programs because they practice religion.
Some Catholics in Colorado think their state has forgotten about that Maine case and similar decisions in favor of expanding religious freedom.
“Like Rip Van Winkle, Colorado appears to have slept through the past three decades of Free Exercise decisions from this Court,” wrote attorneys with the Becket Fund for Religious Liberty. The firm represents two Catholic preschools, the Archdiocese of Denver and a couple with five children who sued over a rule preventing discrimination against LGBTQ families in a universal pre-K program.
When the conservative Supreme Court hears their case on Tuesday, the firm will argue that because of the Maine case, Carson v. Makin, the state should exempt the Catholic preschools from the rule because same-sex relationships violate their religious beliefs. The state, however, says it welcomes faith-based schools to participate in the program as long as they follow the non-discrimination law.
The pre-K program, which began in 2023, covers roughly $6,000 in tuition costs, but Catholic parents who attend parish schools say they’re missing out.
“We’re setting aside money each month. We’re forgoing vacations. We’ve already sacrificed a lot,” Brian Hall, a father of five, said in a Becket social media post. His wife Jill is among the parents and religious organizations who asked the court to hear the case.
Nick Reaves, senior counsel at Becket, said Colorado’s program was designed to let families choose preschools that best fit their children’s needs. The state allows schools to give enrollment preferences for preschoolers with disabilities and those in low-income families. To him, that’s inconsistent with the state’s argument that its goal is to broaden preschool access.
“When you peek behind the curtain, you see that it’s only religious groups that are excluded,” he said.
The record on religion
For the right-leaning court, with six Catholic justices, the case will be the seventh religion-related case since Justice Amy Coney Barrett joined the bench in 2020. In all six decisions since her appointment, the court sided with those arguing that government agencies denied their religious freedoms.
In addition to Carson, the cases include Kennedy v. Bremerton School District, in which the court ruled in favor of a coach who prayed on the football field after games, and Mahmoud v. Taylor, where religious parents challenged a Maryland district’s policy that prohibited opt-outs from readings of stories with LGBTQ characters and themes.
The preschools and families in Colorado also raise the Mahmoud opinion, in which the court said parents shouldn’t have to “accept a burden on their religious exercise” to send their kids to public school. They’re asking the court to overturn the U.S. Court of Appeals for the 10th Circuit, which ruled that Colorado’s law does not violate the First Amendment’s religious protections. The judges also said that prioritizing children with disabilities or kids from low-income families is not the same thing as allowing an exemption from the non-discrimination rule.
Colorado, on behalf of the two pre-K program officials being sued, will argue that a different Supreme Court ruling, not Carson or Mahmoud, is relevant. The state leans on Employment Division v. Smith, a 1990 opinion in which the justices said that religious beliefs don’t exempt a person from complying with a law that applies to everyone.
In that case, two members of the Native American Church in Oregon challenged a controlled substance law after the state denied them unemployment benefits. They were fired from their jobs at a private drug rehabilitation program for smoking peyote, a hallucinogenic plant. They argued the ritual was part of their religion.
“Smith says if it’s just a generally applicable rule, everyone has to follow it,” said Derek Black, a constitutional law professor at the University of South Carolina. “It’s not targeted at religion.”
He joined a friend-of-the-court brief on behalf of the state, along with the teachers unions and Public Funds for Public Schools, a campaign advocating against private school choice programs.
“In practical terms, what petitioners are asking for is a right to receive state funds while denying services to 3- and 4-year-old children because of their or their parents’ identities,” they wrote.
With support for charter schools, magnet programs and open enrollment, Colorado has embraced school choice. Gov. Jared Polis was also the first Democrat to opt in to the new Federal Scholarship Tax Credit program that will allow families to pursue private school choice with scholarships funded by taxpayer donations.
Attorney General Phil Weiser, a Democrat and Polis’ potential successor, has said he’s a “firm no” on the program, and if he wins, could opt out by refusing to submit a list of scholarship-granting organizations to the Treasury Department. While he hasn’t been specific about the reasons he’s opposed, Democrats widely oppose private school choice because the schools participating often decline to accept LGBTQ students and families.
In a brief regarding the UPK case, he and other state officials wrote: “Colorado’s interest is not in ensuring that every family has access to some UPK preschool somewhere — but instead in ensuring that no family is deprived of an available publicly funded option because of their protected-class status.”
In Black’s view, neither the Mahmoud nor Carson decisions apply in the Colorado case. Maine explicitly excluded schools that practice religion, and Mahmoud was about curriculum.
“Colorado is not trying to change what they teach. They’re just saying ‘Admit this kid,’” he said. “That means that the school is going to have to say that ‘A kid’s mere presence in our school is somehow significantly undermining our education program.’ That seems quite fantastical, if you ask me.”
In a reply to the state, the Becket attorneys countered that the Smith ruling is not a “get-out-of-the-First-Amendment card that allows government officials to fine-tune their way out of any challenge.”
As with most Supreme Court cases, the outcome will depend on how broadly the justices rule. The decision could impact a more recent lawsuit in Maine that involves the same schools in the Carson case.
Even before the court said Maine couldn’t exclude religious schools from a school choice program, the state amended its Human Rights Act to include a nondiscrimination rule similar to Colorado’s.
Crosspoint Church, which runs Bangor Christian Schools, sued, and in July this year, the U.S. Court of Appeals for the First Circuit ruled on behalf of the state, saying religious schools are not exempt from the law. First Liberty Institute, a conservative law firm that represents the church, plans to appeal the decision to the Supreme Court if the St. Mary case doesn’t resolve the dispute.
In a brief, the firm said it wanted to make sure the court was “fully aware of the on-the-ground situation in Maine.”
“Religious schools across this country — in Maine, Colorado and elsewhere,” they wrote, “are still not accorded the full promise of the Free Exercise Clause.”
