High Court May Let Catholic Preschools Bar Kids of Gay Parents

The Archdiocese of Denver seeks an exemption from the nondiscrimination rule in Colorado's taxpayer-funded preschool program.

By John Riley on November 5, 2026 @JRileyMW

St. Mary Catholic Parish in Littleton, Colorado – Photo: Facebook

The U.S. Supreme Court appears poised to allow Catholic preschools to receive taxpayer money while denying admission to children of same-sex couples.

The case centers on Colorado’s universal preschool program, which offers children 15 hours a week of tuition-free preschool in the year before kindergarten. Families can choose among programs based in public schools, licensed child care centers, or home-based providers.

Private preschools, including faith-based schools, can also participate if they agree to follow the state’s equal-opportunity and nondiscrimination requirements.

As Colorado prepared to launch the program, the Archdiocese of Denver, which oversees 34 Catholic preschools, sought an exemption from the state’s nondiscrimination rule, CBS News reports. The rule bars participating schools from denying admission based on a child’s or parent’s sexual orientation or gender identity.

Colorado denied the request, citing state laws prohibiting anti-LGBTQ discrimination. The archdiocese, two of its parishes — including St. Mary Parish in Littleton — and a family sued the state, arguing that denying the exemption violates their religious freedom. The plaintiffs say complying with the nondiscrimination requirements would conflict with Catholic teachings on marriage, family, and human sexuality.

Lower courts sided with Colorado, finding that the rule’s protections against discrimination based on sexual orientation and gender identity are neutral and generally applicable. The plaintiffs then asked the Supreme Court to hear the case.

During oral arguments on November 3, questions from conservative justices suggested the court could side with the Catholic preschools. The court has previously sided with a Christian baker and a website designer who sought to refuse services to same-sex couples. In March, the court also ruled that Colorado’s conversion therapy ban must face tougher First Amendment scrutiny as applied to a counselor’s talk therapy.

Justice Amy Coney Barrett asked Helen Norton, Colorado’s deputy solicitor general, how expressly excluding religious schools from the program differs from imposing a condition such as Colorado’s nondiscrimination rule, which the preschools say would force them to condone homosexuality by admitting the children of same-sex couples. Barrett suggested the rule could “push out” schools that hold traditional beliefs about marriage, family, and sexuality.

Justice Brett Kavanaugh asked why Colorado wouldn’t grant the Catholic preschools an exemption, contrasting the archdiocese’s 34 schools with the roughly 2,000 in the state program.

“There are plenty of opportunities to respect the rights of the religious believers and respect the ability of LGBT parents to find among the 2,000 schools an appropriate fit for their children,” he said.

Norton countered that Colorado “welcomes” religious preschools into the program.

“The only thing Colorado asks is that they comply with the same conditions that every publicly funded preschool must meet, religious and secular alike,” she said, adding that religious preschools can still teach traditional beliefs about sex, gender, or marriage while receiving public funding.

The court’s three liberal justices questioned whether the exemption would allow the Catholic preschools to discriminate against LGBTQ families. Justice Elena Kagan described the request as a “special accommodation.”

The conservative justices’ questions suggested the court could narrow the reach of Employment Division v. Smith, a 1990 ruling that held that neutral, generally applicable laws ordinarily do not require religious exemptions. Colorado argues that its nondiscrimination rule meets that standard. The court declined to take up whether to overturn Smith in this case, though it has sided with religious plaintiffs in similar disputes, including a 2021 case involving a Catholic foster care agency in Philadelphia.

Lambda Legal and GLAD Law filed an amicus brief supporting Colorado, arguing that the nondiscrimination requirement does not significantly burden the Catholic preschools.

“When the state pays schools to provide preschool programming, the schoolhouse door must be open to every family,” Karen Loewy, senior counsel and director of constitutional law practice at Lambda Legal, said in a statement. “While religious schools can set their own admissions criteria when they are privately funded, every school, religious or secular, that chooses to take taxpayer dollars is barred from discriminating in violation of Colorado law.”

Loewy added that “no four-year-old should be turned away from a taxpayer-funded classroom because of who their parents are, including children of LGBTQ parents.”