Colorado cleared to deny funding to anti-LGBTQ Catholic preschools

DENVER (CN) — The 10th Circuit on Tuesday affirmed a lower court’s finding that Colorado did not violate Catholic schools’ rights by requiring recipients of preschool funds to adhere to a nondiscrimination policy, requiring enrollment of students regardless of gender identity or sexual orientation.

“The program is a model example of maintaining neutral and generally applicable nondiscrimination laws while nonetheless trying to accommodate the exercise of religious beliefs,” wrote U.S. Circuit Judge Richard Federico in a 54-page opinion. “As such, we can find no reason to rule that the department has violated the Parish Preschools’ free exercise rights.”

Colorado voters approved a state-funded preschool program by ballot measure in 2020. State legislators then passed the Early Childhood Act, creating a government agency and rules to run the program.

One of those rules hinged funding on having open doors. State law requires preschools to “provide eligible children an equal opportunity to enroll and receive services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability, as such characteristics and circumstances apply to the child or the child’s family.”

During its first year, the program funded 15 hours of free education per week for 40,000 children attending 1,900 different preschools, including 900 students who attended 40 faith-based programs.

Preschool administrators at the St. Mary Catholic Parish in Littleton and St. Bernadette Catholic Parish in Lakewood sued Colorado Department of Early Childhood director Lisa Roy over the eligibility requirement in August 2023, which would require the schools to admit LGBTQ families to receive funding.

Following a bench trial, Jimmy Carter-appointed U.S. District Judge John Kane sided with the state on the law’s constitutionality but fined Colorado $1 for allowing religious schools to discriminate against other religions.

The parish preschools appealed.

Federico wrote that Colorado’s nondiscrimination requirements impacted all schools in the state equally and therefore struck a balance between the schools’ religious freedom and students’ right to equal treatment.

“While the Constitution protects religious freedom, courts have long recognized the simple reality that the government must be able to enforce the law equally against everyone, no matter an individual’s beliefs,” wrote the Joe Biden appointee.

Federico compared the case at hand to Masterpiece Cakeshop v. Elenis, in which a narrow U.S. Supreme Court found the Colorado Civil Rights Commission had treated a Christian baker who declined a gay wedding cake commission with such animosity that they violated his rights. In contrast, Federico said, Colorado had gone to great lengths to solicit and incorporate the needs of religious schools into the program.

“In implementing UPK, the department made every effort to encourage faith-based preschools to participate (short of violating state law by granting exceptions to the nondiscrimination requirement),” Federico wrote.

Biden-appointed U.S. Circuit Judge Veronica Rossman and Barack Obama-appointed U.S. Circuit Judge Gregory Phillips signed onto the opinion.

In a statement, Democratic Governor Jared Polis celebrated the court’s decision to support a program that helps give Colorado the third-highest preschool enrollment in the country.

“We are building a Colorado for all, where every student is free from discrimination, and this voter-approved initiative continues to enroll approximately 70% of all eligible four-year-olds each school year, and many faith-based and secular providers are operating terrific preschools that serve parents and children well,” Polis said.

Over email, attorney Nick Reaves at the Becket Fund for Religious Liberty said he was disappointed in the ruling.

“Colorado is punishing religious schools and the families they serve for following their faith,” Reaves wrote. “The Tenth Circuit’s decision allows the state’s anti-religious gamesmanship to continue. We will keep fighting to ensure that every preschooler in Colorado can access quality, affordable education.”

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