In 2020, Colorado voters approved a proposition creating a dedicated source of funding for voluntary, universal preschool in the State. In 2022, the state created the Universal Pre-K Program. Colorado has chosen to condition participation in the Preschool Program on compliance with an “equal opportunity” requirement that eligible children be permitted to enroll in the program and receive services regardless of certain characteristics, including sexual orientation and gender identity. This guarantees that LGBTQ+ children and families do not suffer the stigma and degradation associated with discrimination when they seek to participate in the Program.
Two Catholic parishes that operate preschools brought claims alleging discrimination in violation of the free exercise and the free speech clauses of the First Amendment. The district court held that the State applied the equal opportunity requirement in a neutral and generally applicable manner to these Catholic schools and that it was constitutionally-entitled to do so. The Court did find, however, that the State erred in denying the preschools an exemption to the equal opportunity requirement when it allowed other faith-based providers exemptions from prohibitions on other kinds of discrimination.
We filed an amicus brief along with several other organizations arguing that there is no Free Exercise Clause violation when a governmental body conditions a public benefit on a religion-neutral and generally applicable requirement. The plaintiff religious schools are merely being asked to follow the same antidiscrimination rules that apply to every other school in the Program — rules that are grounded in secular, not religious, concerns.
