St. Mary Catholic Parish v. Roy.
No. 24-1267. 9/30/2025. D.Colo. Judge Federico. Public Funding for Preschools—Early Childhood Act—First Amendment—Nondiscrimination Requirement—Strict Scrutiny Versus Rational Basis Review.
September 30, 2025
In 2020, Colorado voters approved Proposition EE, which created a dedicated source of public funding for voluntary, universal preschool. The Colorado General Assembly then passed the Early Childhood Act (the Act) and other legislation that established a Universal Preschool Program (UPK), allowed public and private preschool to be supported by state funds, and created the Colorado Department of Early Childhood (the department) to implement the law. Colorado preschools are not required to participate in UPK, but those that do are required to agree that they will adhere to the Act’s standards, including the nondiscrimination requirement at issue here. St. Mary’s Catholic Preschool and Wellspring Catholic Academy are a part of the Catholic Church under the authority of the Archdiocese of Denver (Archdiocese). The Archdiocese does not recognize same-sex relationships or transgender status, so it and several other faith groups asked Governor Polis to exempt faith-based religious providers from the nondiscrimination requirement, but the request was denied. St. Mary Catholic Parish and St. Bernadette Catholic Parish and their associated preschools, St. Mary’s Catholic Preschool and Wellspring Catholic Academy; the Archdiocese of Denver; and Daniel and Lisa Sheley, parents who hope to enroll their children in a UPK-eligible preschool (collectively, plaintiffs), brought seven claims and sought an injunction prohibiting enforcement of the nondiscrimination requirement against them with respect to religious affiliation, sexual orientation, and gender identity. They argued that the nondiscrimination requirement violates their rights under the First Amendment and that it triggered strict scrutiny, which the government cannot satisfy. The department moved to dismiss on grounds that plaintiffs lacked standing and that their claims were not ripe. The district court granted the motion to dismiss only with respect to the Archdiocese. The district court then concluded that application of UPK’s nondiscrimination requirement to plaintiffs with respect to sexual orientation and gender identity should not be subjected to strict scrutiny. It applied rational basis review to deny injunctive relief and entered final judgment.
On appeal, plaintiffs contested the dismissal of the Archdiocese for lack of standing. However, the standing of the remaining plaintiffs was not contested, so the Tenth Circuit faced no constitutional bar to considering this case based on the standing of the remaining plaintiffs.
Plaintiffs also challenged the court’s denial of the permanent injunction, arguing that when a state offers subsidies for private education, it cannot categorically withhold those funds from religious institutions under Carson v. Makin, 596 U.S. 767, 768 (2022), Espinoza v. Montana Department of Revenue, 591 U.S. 464, 487 (2020), and Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 462 (2017). However, in these cases the plaintiffs were excluded from participation based on their religious exercise and status. Here, faith-based preschools are allowed to participate in UPK, subject to the nondiscrimination requirement, which applies to all preschools regardless of whether they are religious or secular. The restrictions of the nondiscrimination requirement cover enrollment policies and conduct, but they are not a targeted burden on religious use. The cases plaintiffs rely on are thus inapposite.
Plaintiffs also argued that the nondiscrimination requirement nonetheless infringes on their ability to exercise their religious beliefs. When a religious practice is alleged to be infringed incidentally, rather than religious status or use being specifically targeted, the Supreme Court requires that the law at issue be neutral and generally applicable. Here, the record indicates that the nondiscrimination requirement aims to prevent discrimination on any grounds, secular or religious. And in implementing UPK, the department encouraged faith-based preschools to participate. Accordingly, the UPK law is neutral. Further, state law does not allow the department to make exceptions, so it is generally applicable and thus does not implicate the Free Exercise Clause.
Plaintiffs also contended that categorical secular exceptions to the nondiscrimination requirement undermine the government’s asserted interests in a similar way to the religious exception that they have been denied. They maintained that allowing preschools to prefer enrolling children who are placed in an Individualized Education Program (IEP) or a Head Start program denies other students an equal enrollment opportunity. However, the IEP and Head Start preferences were developed to help preschools comply with federal laws that specifically protect disabled and low-income children. And neither the IEP preference nor the Head Start preference undermines the government’s asserted interest in ensuring equal access to preschools. Rather, allowing some schools to avoid the nondiscrimination requirement with respect to sexual orientation and gender identity would undermine the government’s interest in removing equal access barriers caused by social stigma in a way that the IEP and Head Start preferences do not. Additionally, the preference system was designed and implemented as an algorithmic means of making sure that UPK’s website matches families with the right preschools for their children. Accordingly, the department did not violate plaintiff’s free exercise rights.
Plaintiffs also asserted that the nondiscrimination requirement violates their First Amendment right to freedom of expressive association. However, expressive association rights are not infringed upon by the mandated inclusion of a person unless that person’s presence significantly affects the group’s ability to advocate public or private viewpoints. Here, preschool staff—not the preschool children they teach—are responsible for disseminating a preschool’s message. And expressive association does not protect a school’s right to discriminate in admissions.
The Tenth Circuit concluded that under these facts, no First Amendment violation occurred, so strict scrutiny does not apply. Under rational basis review, the government has articulated a legitimate purpose in protecting equal access to preschool education, and the nondiscrimination requirement is rationally related to this purpose.
The judgment was affirmed.