Supreme Court weighs letting Catholic preschools take public money and refuse queer families

The justices heard arguments on whether Colorado can require taxpayer-funded schools to admit all children — or whether faith gets an exemption.

Told by Claire Lawson · 5 November 2026

The Supreme Court heard arguments on Tuesday about whether Catholic preschools in Colorado can turn away four-year-olds whose parents are gay or trans, and still take taxpayer money to do it. The Archdiocese of Denver and two parishes want an exemption from the state's anti-discrimination law so they can participate in a universal pre-K programme that gives schools $6,300 per child every year, funded by a tobacco tax. The state says fine, you can have the money — as long as you don't refuse admission based on race, religion, sexual orientation or gender identity.

The archdiocese says that condition is unconstitutional. Catholic doctrine doesn't recognize same-sex relationships or transgender status, so requiring them to admit children from LGBTQ families forces them to choose between their faith and access to a public programme. The court's conservative majority — including all three of Donald Trump's appointees — appeared sympathetic. Justice Neil Gorsuch suggested the court's previous rulings allowing taxpayer money to flow to religious schools would be meaningless if Colorado can still shut them out over this. Justice Brett Kavanaugh called accommodation a "win-win" and said there were plenty of other schools in the programme for LGBTQ parents to choose from — roughly 2,000, according to NPR.

Justice Ketanji Brown Jackson took the other side. She told the archdiocese's lawyer, Nicholas Reaves, that he appeared to be asking for a special rule for religious schools, and that the preschools effectively want to discriminate by exclusion. That's the fight in one exchange: the archdiocese says it's being forced to violate its beliefs, and Colorado says it's trying to keep publicly funded schools open to all families.

Here's what the state law actually says: you can't refuse entrance to school based on "race, religion, sexual orientation or gender identity." Now translate that into what it does. A four-year-old whose mum is married to another woman shows up to enrol. The preschool says no, not because of anything the child did, but because the family configuration contradicts Catholic teaching. The mum leaves. The child doesn't get the spot. That's the gap the law was written to close — and it's the gap the archdiocese wants the Supreme Court to protect.

Colorado designed the programme to be broad. Voters approved it in 2020, and the state included religious schools from the start, as long as they followed the anti-discrimination rule. Catholic Charities participates. So do at least 35 Christian schools, one Muslim school and three Jewish schools, according to NPR. State Senator Steve Fenberg, who led the bill, said the goal was simple: "we want every kid, no matter where you live, to be able to have access to universal preschool." State Representative Emily Sirota, a prime sponsor, said parents should have "a robust choice" — with one caveat. "You can't discriminate, and you need to allow all students to participate."

That caveat is what broke it. The archdiocese says enrollment in Catholic schools is down 20% and two preschools have closed, including one serving minority and low-income families. Archbishop James R. Golka wrote in the Denver Post that the larger tragedy is that "Colorado's attack on Catholic education threatens the broader culture," and that the state is creating "a culture unmoored from truth, adrift in confusion." Scott Elmer, superintendent of Catholic schools for the archdiocese, told NPR "it's very rare" for LGBTQ parents to try to enrol their children. "This is not something we deal with regularly," he said.

So the case isn't about a flood of rejected families. It's about whether the state can attach a condition to public money that religious schools say violates their beliefs. The Supreme Court has spent the last decade moving away from the "wall of separation between church and state" that Thomas Jefferson described and the court formally adopted in the 1940s, and toward a focus on protecting the free exercise of religion. That shift has been dramatic. In 1983, the court ruled 8-to-1 that Bob Jones University should lose its tax-exempt status because it banned interracial dating and marriage on religious grounds — that was racial discrimination the government couldn't support. Whether the current court sees this case the same way is unclear. Douglas Laycock, an emeritus professor at the University of Texas and the University of Virginia, told NPR that race has a "unique" place in US history — "250 years of slavery, civil war, 750,000 dead, three constitutional amendments. Nothing like that for any other group."

The Trump administration has filed a brief backing the archdiocese. A ruling is due by the end of June 2027. If the court sides with the challengers, Colorado will have to let religious preschools take state money and refuse admission to children from LGBTQ families. If it sides with the state, the archdiocese will stay out of the programme — and the families it says it serves will lose access to $6,300 per child in funding.

There are roughly 2,000 preschools in Colorado's programme. The families waiting to know whether their children can be refused are not in that number.