U.S. solicitor general urges Supreme Court to stop Colorado’s exclusion of Catholic preschools

A broad coalition including the U.S. solicitor general has lined up behind Colorado Catholic families and two Catholic preschools as the U.S. Supreme Court considers whether Colorado violated the First Amendment by excluding Catholic preschools from its universal preschool program because they operate according to Catholic teaching.

The case, St. Mary Catholic Parish v. Roy, challenges Colorado’s requirement that schools participating in its universal preschool program comply with state policies that the Catholic schools say would force them to violate religious beliefs about marriage, sexuality, and employment to receive public funding.

The U.S. solicitor general joined more than 20 states and 43 Republican members of Congress urging the high court to rule against Colorado’s “discriminatory exclusion” of the faith-based schools. The solicitor general argued that Colorado’s policy discriminates against religious exercise, imposes unconstitutional conditions on participation in a public benefit, and conflicts with recent precedents.

Colorado forces petitioners to choose, the solicitor general wrote. “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 said.

Supreme Court to hear case

Represented by the Becket Fund for Religious Liberty, St. Mary Catholic Parish in Littleton and St. Bernadette Catholic Parish in Lakewood, part of the Archdiocese of Denver, along with several Catholic families, argue that the state cannot deny otherwise available public benefits simply because the schools remain faithful to their religious mission.

The Supreme Court agreed to hear the case this fall after the 10th U.S. Circuit Court of Appeals upheld Colorado’s policy in September 2025 to exclude Catholic preschools because of their religious beliefs.

Broad coalition of support

Support for the Catholic families has continued to grow ahead of oral arguments. A total of 29 friend-of-the-court briefs have been filed urging the justices to rule in favor of the schools, including briefs by more than 20 states, religious liberty scholars, education advocates, and a broad coalition of faith groups.

Among those filing briefs is the U.S. Conference of Catholic Bishops (USCCB).  U.S. bishops stated that “if that decision stands, it will provide a roadmap for governments to circumvent this court’s decisions, directly threatening the free exercise rights of religious adherents and organizations.”

Dan and Lisa Sheley, Catholic parents of seven whose children attend St. Mary’s, said they were encouraged by the widespread support.

“We’re grateful that so many people from across the country are rallying behind our case,” they said in a statement provided by Becket. “Colorado promised preschool for all but then showed Catholic families the door. That’s unfair to parents, unfair to children, and contrary to the spirit of the Constitution’s promise of religious freedom.”

Previous religious liberty cases

Eric Rassbach, vice president and senior counsel at Becket, said in a statement the coalition demonstrates the significance of the case.

“Colorado has united a diverse array of Americans around a simple point: It’s wrong to promise preschool support to every family in the state and then yank it away from Catholic families,” Rassbach said. “This broad coalition shows just how egregious and unlawful Colorado’s religious discrimination has become. We’re confident the court will remind Colorado — once again — that the First Amendment protects religious people too.”

The case follows a series of Supreme Court decisions strengthening protections for religious schools, including Trinity Lutheran Church v. Comer, Espinoza v. Montana Department of Revenue, and Carson v. Makin, all of which held that states generally may not exclude religious institutions from publicly available benefits because of their religious identity. A decision in St. Mary Catholic Parish v. Roy could further define the constitutional protections afforded to religious schools participating in government education programs.