Supreme Court liberals question taxpayer funding for Catholic preschools that reject LGBTQ+ parents

What the justices were asked on Nov. 3

The U.S. Supreme Court's three liberal justices sharply questioned whether Catholic preschools should receive taxpayer funding while retaining the ability to reject children of LGBTQ+ parents. ^[1] The court heard oral arguments on Nov. 3, 2026, on whether a private school benefitting from public funds can exclude children of LGBTQ+ parents. ^[2]

The case is St. Mary Catholic Parish v. Roy. ^[1] Many of the conservative justices appeared receptive to the schools' challenge to Colorado's nondiscrimination requirements. ^[1]

How Colorado's preschool program works

Colorado launched its universal preschool program in 2023 through public and private providers, including religious schools. ^[1] Families receive 15 hours of free preschool a week at the public or private preschool of their choice. ^[2] According to the petitioners, the benefit is worth about $6,000 per child. ^[2]

Participating schools may teach their faith but must provide equal enrollment opportunities regardless of protected characteristics, including sexual orientation and gender identity. ^[1] Colorado requires any school in the program to sign a nondiscrimination agreement that prohibits discrimination based on LGBTQ+ identity. ^[2]

The challenge and the lower courts

Two Catholic parishes and the Archdiocese of Denver challenged the program's conditions without applying to participate, arguing that they conflict with religious admissions policies. ^[1] The petitioners include parents of preschool-age children and two religious parishes that have affiliated preschools. ^[2]

They sued under the First Amendment's free exercise clause, arguing the provision violates their religious freedom rights. ^[2] They also claim Colorado has allowed many exemptions, such as for schools aimed at low-income families or children with disabilities. ^[2]

A federal district court ruled for Colorado after a trial, and the 10th U.S. Circuit Court of Appeals affirmed that decision. ^[1] The Supreme Court agreed in April to hear the challenge. ^[1]

Colorado argues its program welcomes religious providers and regulates discriminatory admissions, not religious teaching. ^[1]

Earlier rulings the court has issued

Earlier Supreme Court decisions barred states from excluding schools from funding because they are religious. ^[1] In Espinoza v. Montana Department of Revenue, heard in 2020, the court ruled for a Montana mother who wanted to use a tax credit-funded scholarship at a Christian school. ^[2]

In 2022, the justices ruled that Maine violated the First Amendment by restricting religious private schools from using public tuition assistance programs. ^[2] In 2018's Masterpiece Cakeshop, the court ruled for a Colorado baker who refused to make a custom wedding cake for a same-sex couple. ^[2]

What the justices said

Justice Sotomayor asked whether Catholic schools would reject a child merely because the parents are homosexual. ^[1] Nicholas Reaves, the petitioners' attorney, said an exclusion would be permitted if it is the sincere religious exercise of the petitioner. ^[1] He said families must affirm the schools' statement of community beliefs in good faith, and that some circumstances involving same-sex couples would prevent enrollment. ^[1]

Justice Sotomayor said parents who choose to subject their children to a school's teaching must be accepted by the school. ^[1] Justice Jackson said the school itself does not have to admit anyone it does not want to admit, but schools accepting public benefits voluntarily must follow the conditions that apply. ^[1] She also challenged the Trump administration's argument that conditioning funding on compliance burdens religious freedom. ^[1]

Justice Kavanaugh asked why the schools would not seek a win/win, pointing to roughly 2,000 participating preschools and 34 Catholic schools. ^[1] He also questioned where schools would draw the line, such as refusing to hire gay coaches or athletic directors. ^[2]

Justice Alito said there was little evidence of a practical problem and that LGBTQ+ couples could find other preschools for their children. ^[2] Justice Barrett asked how it is different when a formally neutral requirement is known to push out those with a contrary belief. ^[1]

Chief Justice Roberts initially distinguished Colorado's policy from explicit religious exclusions but later suggested the effects were pretty much the same. ^[1] The conservative justices seemed to agree there may be some instances when religious schools receiving public funding can exercise beliefs in a way that excludes LGBTQ+ families. ^[2]

Reactions from families and advocates

Petitioner Lisa Sheley said Colorado punished her family for choosing the same education for their little ones as for their older siblings. ^[1] Reaves said Catholic families and schools just want the same treatment as others in participating in the universal preschool program. ^[2]

Reaves said families had paid thousands of dollars out of pocket and that enrollment at Catholic preschools in the archdiocese had fallen nearly 20 percent. ^[1] He attributed two school closures to funding shortfalls and declining enrollment. ^[1]

Lambda Legal and GLAD Law filed a brief supporting Colorado. ^[1] Lambda Legal attorney Karen Loewy said no four-year-old should be turned away from a taxpayer-funded classroom because of who their parents are. ^[1] Human Rights Campaign President Kelley Robinson said exclusion has no place in the educational system. ^[1]