The Supreme Court has the opportunity to reaffirm that religious freedom is not conditional on ideological conformity.
R eligious freedom in America is under attack by gender ideologues, and Colorado is leading the way. The state has tried to silence counselors through a ban on so-called “conversion therapy,” a case that will be argued today before the Supreme Court. And now, Colorado has turned its sights on very young children by hijacking its new taxpayer-funded universal preschool program to force gender ideology on children as young as three and four, while pushing Catholic and other Christian preschools to the margins. Families wishing to participate in the program are told that a Christian school’s religious convictions (not to mention biological reality) make them unworthy participants in a program meant to help children thrive.
Last week, in St. Mary Catholic Parish v. Roy, a three-judge panel of the Tenth Circuit Court of Appeals didn’t bat an eye at the state’s open discrimination. Instead, the court praised Colorado’s actions as a “model” for how other states should act. One of the state’s experts — who testified at trial that she had treated “quite a few” transgender preschoolers — insisted that a preschooler could begin the year as “cisgender” but soon “be revealed as gender diverse.” She even speculated that any school holding “a sincere religious belief about sexual orientation and gender identity” should be excluded from Colorado’s “universal” preschool program because it would likely allow LGBTQ students “to be teased.” Remarkably, these sweeping hypotheticals and conjectures were accepted without scrutiny and elevated into a justification for excluding Catholic and other Christian preschools that embrace traditional religious teaching on human sexuality and identity from Colorado’s universal preschool program.
The panel also based its legal analysis on the standard set forth in Employment Division v. Smith, the Supreme Court’s 1990 ruling that neutral, generally applicable laws do not trigger strict scrutiny even if they burden religious practice. Did they not recall that in Fulton v. City of Philadelphia, a majority of the Court’s current justices criticized Smith as unworkable? And just as Lemon v. Kurtzman and its progeny were an unworkable standard for evaluating establishment clause claims, Smith operates to the detriment of religious liberty. Here, reliance on Smith allows Colorado to try to coerce Catholic schools (they won’t be coerced) into violating their beliefs without identifying any actual harm and to hide its targeting of religious schools behind a mask of “neutrality.” But the facts are clear: The only schools excluded by Colorado are a handful of religious schools — that is anything but neutral application of an evenhanded law.
The Becket Fund, representing the archdiocese and a group of Catholic preschools, made this clear in its filings. Colorado’s actions help no one. Even after a full trial on this case, the state cannot point to a single child harmed or a single family denied a preschool that meets their needs because a Catholic school refused to compromise its faith. No child is missing out. No family is blocked. The state’s mandate does not expand access. It punishes schools for being faithful. By excluding Catholic and other Christian preschools, Colorado is not helping families find programs that are the best fit for their families. Rather, it is coercing them to choose from only those schools that have agreed to adopt the state’s preferred beliefs. What’s more, Colorado’s own experts could not explain why Catholic preschools or the families they serve should be excluded. The exclusion is not about children, or learning, or the preschool program. Instead, it is about forcing schools to abandon their convictions. It is coercion, plain and simple.
These sorts of strong-arm tactics were at play in Fulton, when the City of Philadelphia tried to force Catholic Social Services to agree to certify same-sex couples as foster parents where there was no evidence that any such couple had ever approached the agency. The Court handed the Catholic agency a victory but didn’t address the underlying issue of whether government could exclude a faith-based group based on its unwillingness to abandon its sincerely held religious beliefs.
The human cost of these sorts of tactics is real. Parents who want a preschool aligned with their faith face a terrible choice: compromise conscience or forgo access to public programs. Families highlighted in the Conscience Project’s amicus brief show parents desperately trying to find preschools that reflect their values — parents who should be able to participate in the program without surrendering their faith. The state’s rules do nothing to fill gaps or expand access. They impose ideology on families and educators.
The Tenth Circuit tried to dress the case up as simply the application of a neutral, generally applicable law. But neutrality in name only does not make it fair in practice. There is no child harmed. No family left without options. The law punishes schools for following their faith. Formally neutral, in substance it is coercive, forcing Catholic preschools to abandon their beliefs or remain excluded.
The Supreme Court will likely soon have the opportunity to reaffirm that religious freedom is not conditional on ideological conformity. Faith-based schools and families must not be excluded from public programs simply because their beliefs about sexual orientation or gender identity differ from the state’s preferred orthodoxy. A ruling in favor of the archdiocese and the Catholic preschools by the high court would protect these schools, their families, and the fundamental right to act according to conscience.
Colorado’s universal preschool program should be about children, not ideology. Faith-based schools and the families they serve in Colorado deserve access to the benefits offered by the state’s universal preschool program without having to compromise their sincere religious beliefs. The archdiocese and preschools plan to file a petition for review with the Supreme Court in the next 90 days. The Court’s review would offer it the chance to stop this coercion, uphold religious freedom, and make clear that participation in government programs cannot hinge on abandoning one’s faith. For Colorado families, that clarity cannot come soon enough.