Should Religious Schools Receive Public Funding Without Following Its Rules?

Colorado’s requirement protects access to taxpayer-funded education. It does not require participating schools to abandon religious instruction or change their teachings about marriage. It addresses whether families may enroll without discrimination based on sexual orientation or gender identity. In my view, admitting a child does not require a school to endorse the parent’s relationship. Colorado should protect access to its preschool program while allowing religious schools to explain and practice their faith within constitutional limits.

Colorado’s universal preschool program began operating in 2023 and provides free preschool to four-year-olds. Parents may choose participating public, private, or religious providers. According to Greenhouse, approximately 2,000 schools participate, including dozens of religious schools. Providers must meet program requirements, including protections against admissions discrimination based on characteristics such as race, religious affiliation, sexual orientation, and gender identity. Religious schools are eligible for funding; the disagreement centers on whether certain providers must follow the admissions conditions.

The Archdiocese of Denver requires parents seeking admission to its schools to accept Catholic teachings concerning marriage and family and sign a statement of community beliefs. Greenhouse reports that same-sex and transgender parents are instructed not to apply. The archdiocese requested an exemption from the relevant nondiscrimination provisions, but Colorado’s Department of Early Childhood refused. Two parishes, St. Mary in Littleton and St. Bernadette in Lakewood, sued alongside parents seeking publicly funded Catholic preschool education. The federal district court rejected their challenge, and the Tenth Circuit affirmed. The Supreme Court has agreed to review the case but has not decided it.

The central constitutional question involves the First Amendment’s Free Exercise Clause, which protects religious belief and practice against unconstitutional government interference. The schools argue that their admissions policies reflect their religious mission and that Colorado pressures them to compromise their faith to receive funding. Financial conditions can burden religious exercise even without directly prohibiting religious practices. However, recognizing that burden does not automatically require Colorado to grant the requested exemption. The Court must examine the condition, its purpose, and how it operates.

Colorado’s strongest argument is that the requirement protects access to a taxpayer-funded educational service. The state permits religious schools to participate without abandoning religious instruction. The challenged condition addresses whether families can enroll without discrimination based on sexual orientation or gender identity. From my perspective, admitting a child does not require a school to approve of a parent’s personal life, let alone their relationships or its teachings about marriage. Colorado should be able to protect access to its program without deciding whether those religious teachings are correct.

The school’s reliance on Carson v. Makin does not settle this dispute. In Carson, the Supreme Court rejected Maine’s exclusion of religious schools from a tuition assistance program. Colorado already includes religious providers. Requiring an exemption here would extend the argument beyond funding eligibility to the conditions governing participation. Equal treatment should mean a fair opportunity to participate, rather than an automatic right to replace the program’s admissions protections with a provider’s preferred policies. The Court should preserve that distinction.

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Bob Jones University v. The United States sets a precedent as an analogy. The Supreme Court upheld denying tax-exempt status to religious schools practicing racial discrimination, finding that the government’s compelling interest in eliminating racial discrimination in education outweighed the burden on religious exercise. The case demonstrates that a religious justification does not automatically require the government to provide a financial benefit. Colorado’s case concerns preschool funding and discrimination based on sexual orientation and gender identity, so Bob Jones does not determine its outcome. Nevertheless, its reasoning supports Colorado’s position: protecting religious exercise does not prevent the government from defending a sufficiently strong interest in nondiscriminatory access to education. Colorado should be permitted to protect that access within the preschool program it finances.

The slippery-slope concern here involves public funding and accountability. If religious providers can receive funding while rejecting access protections, similar arguments could challenge other requirements attached to publicly financed services. That outcome is not inevitable, but the reasoning could weaken the state’s ability to protect intended beneficiaries. A constitutional exemption requires a specific justification. Religious participation alone should not turn public funding into an entitlement available on terms each provider selects.

The schools also argue that Colorado permits other exceptions, undermining the requirement’s general applicability. This objection matters. A state cannot claim neutrality while treating comparable secular conduct more favorably. However, an exception does not automatically justify every requested religious exemption. The Court should examine whether the exceptions undermine the same governmental interest. Colorado should defend its position through that comparison, rather than assuming identical wording always produces equal treatment.

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Overall, Colorado’s program exists to expand educational opportunities for children. Excluding a child because of a parent’s identity or relationship restricts access for reasons unrelated to educational need. Religious schools deserve protection from government hostility, but families also deserve protection within publicly funded services. The Court should uphold Colorado’s challenged requirement and reject the requested exemption. That outcome would preserve religious participation while maintaining the state’s authority to protect fair access to the educational opportunities taxpayers finance.

Sources:

https://www.nytimes.com/2026/09/30/opinion/su
preme-court-john-roberts-religion.html

https://manhattan.institute/article/amicus-brief-st-mary-catholic-parish-v-roy  

https://angelusnews.com/news/nation/scotus-colorado-preschool/