Federal judge rules Colorado Catholic preschools can consider religion for enrollment in state program, but cannot exclude LBGTQ families

A federal judge ruled Thursday that Catholic preschools participating in the state’s universal preschool program can take religion into account when enrolling families. The ruling, however, does not allow preschool providers to discriminate on the basis of other protected classes such as sexual orientation and gender identity, rejecting most claims made by two Catholic preschools who filed a lawsuit against the state last year.

Colorado’s universal preschool law allows schools to give preference to low-income families and also allows religious preschools to give seat preference to members of their congregations. It therefore follows that they can also determine whether they accept families based on the religion of a child or the family, depending on the decision.

In launching the universal preschool program, providers were required to comply with Colorado’s nondiscrimination laws in order to receive funding and participate in the program. This meant that providers could not enroll or refuse families based on their sexual orientation, religious affiliation, or gender identity.

The Archdiocese of Denver and two of its parishes that operate preschools — St. Mary in Littleton and St. Bernadette’s in Lakewood — filed a lawsuit against the state in federal district court last year. They claimed the nondiscrimination requirement violated their religious freedom by requiring them to hire LGBTQ+ educators or enroll LGBTQ+ families. They argued that this was against their religious beliefs.

Colorado’s universal preschool program funds 15 hours per week of free preschool to more than 40,000 families. It includes preschools, family service providers and private preschools, including faith-based institutions. Last year, there were 39 faith-based providers.

However, the two Catholic preschools named in the lawsuit did not adhere to the program, meaning that families with children enrolled in their preschools were unable to benefit from free, state-subsidized preschool. . In the archdiocese’s initial complaint, it claimed the state illegally denied its 26 preschools admission to the UPK program because of its religious beliefs against admitting LGBTQ+ individuals and families to their schools.

In a 101-page opinion, the court ruled that the state “had no compelling interest” in excluding Catholic preschools from considering religious affiliation during enrollment. He ruled that the state “created an unworkable system that violates proper limits on state power” and violates the Free Exercise Clause of the First Amendment.

“Defendants cannot have it both ways…They cannot claim that congregational preference does not apply to conduct that is necessarily religious, while at the same time arguing that the preference ‘is only available ‘to religious providers,'” wrote Judge John L. Kane.

Kane issued an injunction allowing the two Catholic parishes to participate in the PUK without agreeing to the state’s non-discrimination clause – based solely on religion.

But the ruling also means that a religious preschool cannot exclude a child or family on the basis of sexual orientation, gender identity, race and ethnicity, and other protected characteristics such as income level and disability.

For example, a preschool cannot exclude a family from enrollment if a family member identifies as LGBTQ+, nor for reasons of gender identity.

Additionally, the state recently removed the nondiscrimination clause from the agreement that providers must sign to participate in universal preschool, which was at the center of the conflict. State officials say they removed the clause along with any references to religion, sexual orientation or gender identity because it duplicated what’s already in Colorado’s UPK law.

The plaintiffs consider this judgment a victory.

“Of course, a Catholic school should not be punished because it cares about the religion of its students,” said Nick Reaves, an attorney with the Becket Law Firm, which represented the plaintiffs. “Colorado thoroughly deserves this injunction.”

In a statement, the Colorado Department of Child Care said it cannot comment on active and pending litigation.

It is unclear whether either party will appeal the decision to the U.S. Court of Appeals in Denver.