The Supreme Court has agreed to hear the case of a Colorado Catholic preschool that wishes to get state funding but not follow all antidiscrimination laws pertaining to gay and transgender students and possibly staff.
I suspect that constitutional law professor Josh Blackman is right to predict the Court’s view, “This will likely be yet another repudiation of Colorado’s hostility to religious liberty.” Yet I wish Blackman and other conservatives would more fully think through the implications of the case for freedom of conscience.
Remember who’s paying the bill
The basic argument for not excluding the Catholic preschool is that excluding it infringes the school’s religious liberty. Religious preschools should be able to participate in a government program on the same grounds as everyone else, without violating the tenets of their faith.
But that legal argument ignores the underlying moral issue: The state is forcing individual Colorado taxpayers to finance these preschools. Shouldn’t the person who earns the money have a say in how it is spent?
I hold secular views. So in my view, when a preschool (or any institution) denies participation specifically to gay and transgender people, that is morally repugnant. (Many religious people also openly accept gay and transgender people, so that is not only a secular viewpoint.) I do not wish to help finance any institution that so discriminates.
When the government forces me to financially help support an institution that discriminates against gay and transgender people, that is a violation of my freedom of conscience. The right to freedom of conscience entails the right not to support organizations that act on viewpoints inimical to my own.
But the people who run the Catholic preschool, and the people who wish to use it, also pay taxes. It is also unfair for government to force those people to financially support other preschools with different ideals when the preschool of their choice is excluded from participation.
The proper conclusion seems obvious: Government should not be in the business of forcing people to financially support preschools. If government would just stop financing preschools, people would be free to choose which preschools (if any) to financially support. The rights violations arise specifically because of the tax financing.
As I’ve suggested, if government just subsidized poor families for general expenses (which might include preschool expenses), that would get around a lot of the sorts of ideological clashes I’m describing. Of course we’re left with the question of whether individuals should be free to decide whether to subsidize poor people.
A problem of overregulation
Predictably, Colorado’s subsidized preschool program resulted in a “rocky launch” and continued political wrangling over the funds, as Chalkbeat reports. And, surprising to no sensible person, “free” preschool has not solved the supply problem. John Ingold writes of the problem of finding care and notes that some people recommend getting on waitlists as soon as you learn you’re pregnant!
Writing for Reason, J. D. Tuccille points out that overregulation curbs supply and raises costs. Tuccille points to Archbridge’s “State Childcare Regulations Index 2026,” which ranks Colorado as 28th in the nation for childcare freedom. The Common Sense Institute also notes that zoning restrictions and other regulatory barriers limit access to child care.
Colorado jumped into a subsidized preschool program because of problems with limited access and high costs. The state instead should have looked for ways to ease regulatory burdens on child-care providers, and maybe also looked at different ways to subsidize poor families directly, rather than send money to otherwise-private preschools. Then this entire fight over religious liberty and freedom of conscience in the context of preschool funding could have been avoided.
The limits of tolerated discrimination
I also worry that a lot of conservatives are not fully thinking through the implications of their position for discrimination law more broadly. Do we really want to say that any organization may discriminate however it wants, so long as it claims religious grounds?
Robert Alan Goldberg reminds us that Colorado’s KKK preached “‘100 Per Cent Americanism’ and a militant Protestantism” that saw its campaigns against Catholics, immigrants, and minorities as a religious mission. Going further back, Richard Furman echoed the common sentiment of the South when he claimed “the right of holding slaves is clearly established in the Holy Scriptures.”
Does anyone think that a preschool run by religious white nationalists that accepts state funds should be able to discriminate against black, brown, and Jewish children? Does anyone think that a Protestant preschool that accepts state funds should be able to discriminate against Catholic children? (In the Protestant church in which I was raised, some participants actively debated whether Catholics could make it into heaven, owing to their “wrong” baptismal practices.)
Here is the dilemma. If you say that faith alone is sufficient to justify discriminatory practices, then how would you rule out some forms of faith-based discrimination but not others? If you turn to reasons accessible to all, then you pivot from a faith-based approach to a secular-compatible approach. Good luck trying to come up with a secular case for why institutions should not be able to discriminate against black people or Catholics but should be able to discriminate against gay and transgender people.
These problems are especially pointed when we’re talking about organizations partly funded by government, meaning by coerced taxpayers. I’ll defer to another day complications for totally privately funded organizations.
To sum up, here is my central worry about claims of religious liberty in the context of tax-funded institutions: There is and can be no genuine liberty to forcibly take other people’s funds to use for ideological ends. And education is inescapably ideological.
Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.
