WASHINGTON, DC–Numerous legal briefs supporting local Colorado Catholic schools in their challenge to mandates around the state’s universal preschool program have been filed with the U.S. Supreme Court, setting the stage for another high-profile Colorado religious freedom case before the nation’s highest court.
The case, brought by the Archdiocese of Denver and two parish preschools in Littleton and Lakewood, argues the state is discriminating on the basis of religion by barring families from using funds provided by the universal preschool program schools within the diocese.
The Colorado Department of Early Childhood preschool funding program launched in 2023, offering to cover up to 15 hours per week of preschool costs. The state statute for the program includes an “equal opportunity” mandate for all participating schools to accept students “regardless of” sexual orientation or gender identity.
“Colorado created a universal preschool program that funds families to send children to the public or private preschool of their choice— but not the Archdiocese of Denver’s Catholic preschools. Why the exclusion? Because, Colorado says, these preschools’ religious practice of admitting only families who support Catholic teachings, including on sex and gender, is ‘discrimination,’” the petition filed in November argued. “Yet Colorado has permitted many exemptions, both categorical and discretionary, from the “equal opportunity” rule it has invoked against Catholic preschools.”
Amicus briefs flow
The case has drawn 30 amicus briefs filed in support of the petitioners in June and July, including from the U.S. Solicitor General, 21 states, 43 members of Congress, and several nonprofit groups.
Solicitor General D. John Sauer in the brief on behalf of the U.S. argued that Colorado’s program requires the petitioners to choose between their Catholic beliefs or the preschool funding:
“Colorado’s scheme thus forces petitioners to choose: They can either adhere to their faith, which precludes enrolling families who refuse to adhere to Catholic teachings, and lose the subsidy, or obtain the subsidy but abandon their religious beliefs,” the brief reads, in part. “The question animating this case is whether the Free Exercise Clause, U.S. Const. Amend. I, forbids Colorado from refusing to accommodate petitioners’ religious exercise.”
The 43 members of Congress – which includes Colorado Reps. Gabe Evans and Jeff Crank – in their brief backing the plaintiffs argue that the state’s nondiscrimination requirements created an “end run around” the First Amendment’s Free Exercise Clause, warning similar tactics would be used in other states.
Polis punches back
Colorado Gov. Jared Polis responded to the briefs by touting the program as “highly popular and successful,” with 79 religious providers participating as of April 2025-26, and over 2,000 students getting $9.5 million.
“I am passionate about building a Colorado for all, where every student gets a strong start and families can thrive. We are proud to have the participation of so many religious schools and welcome the participation of all religious preschools in universal preschool,” said Polis. “Colorado’s voter-approved Universal Preschool is a successful national model that saves families over $6,300 per year and prepares more than 40,000 kids for success in the classroom.”
“Here in Colorado, we welcome all who want to help Colorado’s youngest learners, regardless of their background. Faith-based preschools have always been welcome to participate in Colorado’s Universal Preschool, and many already do,” Polis added. “I hope more join so we can expand access, help more families save money, and give more kids a strong start.”
The court agreed to take up St. Mary Catholic Parish v. Roy in April, marking the fourth Colorado-based religious freedom case in the last decade to make its way up to the nation’s highest court.
Colorado on a SCOTUS losing streak
The U.S. Supreme Court has ruled against Colorado several times in recent years, including Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), 303 Creative v. Elenis(2023), and Chiles v. Salazar ( 2026).
Attorney General Phil Weiser’s office in March filed a brief opposing the petition prior to the Supreme Court agreeing to hear the case, arguing the 10th Circuit Court of Appeals, which upheld a lower court’s ruling in favor of the law last October, “correctly interpreted the state statute to allow no exceptions—and to confer no discretion to create any exceptions—to its equal-opportunity requirements.”
Respondents have until August 17 to file briefs, according to SCOTUSblog.
