The U.S. Supreme Court will hear arguments on Election Day, Tuesday, Nov. 3, in St. Mary Catholic Parish v. Roy, a fight over whether Catholic preschools can take Colorado’s free pre-K money while declining to enroll children of LGBTQ parents.
St. Mary in Littleton, St. Bernadette in Lakewood, the Archdiocese of Denver and parents Dan and Lisa Sheley sued in 2023. Colorado’s universal preschool program makes each participating school give kids an equal shot at a seat, regardless of sexual orientation, gender identity and other traits. The archdiocese kept its preschools out of the program.
“Petitioners’ witnesses testified that their schools would refuse to enroll the children of same-sex parents,” Attorney General Phil Weiser’s office told the justices in an Aug. 17 brief. It says St. Bernadette, one of the two parishes, “denied enrollment to a fifth-grade child of same-sex parents.”
The parishes’ own brief quotes archdiocese guidance for a family that “doesn’t see eye to eye” with church teaching on sex and marriage. It reads, “we ask our school leaders to please not admit the child out of abundant respect for the family.”
ExplainerWhat the Supreme Court Agreed to Review
- Religious exceptions
- When do exceptions for secular activities require a state to accommodate religious objections?
- Access to public benefits
- How do protections against religious exclusion apply to Colorado’s preschool program?
- Limited review
- The justices granted questions 1 and 2. They did not take up the separate request to reconsider Employment Division v. Smith.
Why Michelle Theall Chose Catholic Preschool
Michelle Theall was raised Catholic. She and her wife adopted their son from the Boulder County foster system when he was 14 months old, and they picked a Catholic preschool.
“We’re not telling you what to teach,” Theall said in a brief that Family Equality, COLAGE and Rocky Mountain Equality filed Aug. 24. If the state offered a benefit meant for everyone but barred her son from Sacred Heart of Jesus “because of who you are,” she said, “that’s absolutely discriminatory.”
Her son went to preschool at Sacred Heart in Boulder until 2009, Boulder Weekly reported in March 2010. The parish school had just refused to re-enroll the child of another lesbian couple.
“Public funding carries public responsibility, and that basic contract cannot be selectively applied,” Mardi Moore, CEO of Rocky Mountain Equality, said in April, Colorado Newsline reported.
The Parishes Say Colorado Is Excluding Religious Families
The Sheleys say they have lost more than $12,000 in pre-K funding by choosing Catholic preschool. The parishes’ brief also says St. Bernadette’s preschool closed during the litigation because of lower enrollment and funding shortfalls.
“We pray the Supreme Court will remind Colorado that universal means everyone,” the couple said April 20 in a statement from Becket, the law firm representing them.
Becket notes that more than 1,000 Colorado preschools use enrollment preferences, such as for low-income kids. “When you peek behind the curtain, you see that it’s only religious groups that are excluded,” Becket senior counsel Nick Reaves told The 74.
U.S. Solicitor General D. John Sauer filed a brief for the Trump administration in July. It argues that letting schools create “bespoke preferences is the antithesis of general applicability.” The court gave his office time to argue on Oct. 5, the docket shows.
Colorado Says Public Funding Comes With Equal Access
Colorado had 42,862 four-year-olds enrolled in universal preschool as of Dec. 22, 2025, the Department of Early Childhood said. Its executive director, Lisa Roy, is the lead defendant.
“Faith-based preschools have always been welcome to participate in Colorado’s Universal Preschool and many already do,” Gov. Jared Polis said July 6, the Deseret News reported.
A 10th Circuit panel ruled for the state in September 2025. Judge Richard Federico called the program “a model example of maintaining neutral and generally applicable nondiscrimination laws” in the opinion.
Among the friend-of-the-court briefs is one from 179 members of Congress, 13 senators and 166 House members, led by Sens. Tammy Baldwin and Jeff Merkley and Rep. Mark Takano.
Former Catholic school superintendents Timothy Uhl, of Montana, and Jeannie Ray-Timoney, of the Archdiocese of Portland in Oregon, filed another. They say Portland’s Catholic schools have enrolled kids from many kinds of families, “including families headed by same-sex parents.”
“This has not required the schools to alter their religious instruction or to abandon their Catholic identity,” their brief says.
“A four-year-old shouldn’t lose their spot in preschool because of who their parents are,” says GLAD Law, which filed for Colorado with Lambda Legal.
The justices agreed to hear two questions about religious freedom and public benefits. The dispute asks when a state must make religious exceptions to rules governing a public program. The parishes say Colorado allows comparable secular preferences; the state says those preferences do not permit discrimination against protected groups. The court did not grant the separate request to reconsider Employment Division v. Smith, the precedent governing neutral laws that apply generally.
Arguments start at 10 a.m. Eastern. “A ruling in the case is expected next year,” the Human Rights Campaign said Oct. 26.
