Erika Nagle loves the preschool at St. Mary Catholic Parish.
When her first two children attended, she shuttled them 40 minutes to the school and back home in Denver-area traffic. But her choice meant she had to forgo the roughly $6,300-per-child assistance that Colorado’s universal pre-K program provides parents who send their kids to many other preschools.
Families at St. Mary are not eligible for the financial assistance because the school, like others run by the Denver Archdiocese, does not accept children of gay parents, a policy that violates the pre-K program’s antidiscrimination requirements.
But the admissions policy, the school says, is in line with its Catholic teachings and is protected by the constitutional right to the free-exercise of religion.
Now, preparing to enroll her third child at St. Mary, Nagle argues she and other St. Mary parents are the ones being discriminated against.
“It just puts a bad taste in our mouths when we know that we are being excluded and feeling like we’re punished for choosing the religious school of our choice,” Nagle, who now also has a job with the school, said in an interview.
Whether that will change — and parents like Nagle can use the state benefit for their religious preschool — is a question now before the Supreme Court. The case, being argued Tuesday, has the potential to extend the Supreme Court’s remaking of the wall between church and state in America. Since 2020, the court, dominated by a 6-3 conservative majority, has ruled in favor of religious groups in nearly every case involving church-state separation, and legal experts expect St. Mary to fare no differently.
If the high court rules for St. Mary, it could cross a new line: allowing public benefits to flow to religious schools that openly discriminate on the basis of sexual orientation.
The high court has already ruled that religious schools do not need to comply with federal age and disability requirements when hiring and firing teachers of secular subjects, said Erwin Chemerinsky, dean of the law school at the University of California at Berkeley.
“I think this would even go further and say: You can’t deny us funding for anything that we believe would cause us to refuse to take the money on account of our religion,” Chemerinsky said in an interview.
The program, approved by Colorado voters in 2020, reimburses the cost of 15 hours per week of preschool for all 4-year-olds in the state. As of December, that adds up to about $6,300 per child. Parents can choose which preschool their child will attend, including any public, private or religious school that meets the state’s standards.
To participate, schools may not deny enrollment on the basis of race, religious affiliation, income level and a host of other legally protected characteristics, including sexual orientation and gender identity.
All 34 preschools run by the Denver Archdiocese, including St. Mary, do not participate because they do not accept the children of gay and transgender parents.
St. Mary says doing otherwise would conflict with the church’s teachings that marriage can be only between a man and a woman. Every preschool within the archdiocese requires that parents sign a statement of “Community Beliefs and Commitments,” in which they agree to accept church teachings “increasingly at odds with” secular culture, including that abortion and same-sex marriage are immoral.
“This alignment is important because, if parents publicly oppose the Church’s teachings, their participation in the school community would impair the ability of the school to form its students in the faith,” St. Mary attorneys wrote in a filing to the high court.
But the state says the policy conflicts with Colorado’s requirements that eligible schools cannot discriminate on the basis of sexual orientation and gender identity. The state adds that the exclusion of LGBTQ+ parents — and not the fact that it is religious — disqualifies St. Mary and other Catholic preschools.
“Petitioners remain welcome to participate in UPK, subject to the same equal-opportunity requirements that apply to all other publicly funded preschools — public and private, secular and religious,” the state wrote in its opening brief to the Supreme Court.
LGBTQ+ advocates say an exemption for St. Mary would lead to government-sponsored discrimination. There is little difference between denying families based on sexual orientation and denying parents based on race, one group of scholars argued in an amicus brief. And in a 1968 decision, the high court rejected the argument that religious free exercise is a valid reason to turn people away based on race.
“The distinction between ‘bigoted’ racists and ‘honorable’ citizens with deeply held religious beliefs distorts how American society … viewed these issues 60 years ago,” Perry L. Glantz wrote on behalf of a group of legal scholars who support civil rights protections for LGBTQ+ people. “Moreover, like today’s exemption seekers, religious objectors to the [Civil Rights Act of 1965] bristled when described as bigots; they, too, considered their faith-based opposition to the [Civil Rights Act] honorable, right, and just.”
St. Mary argues that adhering to its beliefs does not constitute discrimination.
Instead, it’s about creating a “holistic community” with a shared set of beliefs, said Nick Reaves, a lawyer with the Becket Fund for Religious Liberty, a religious legal nonprofit representing St. Mary.
“The Catholic church is being entrusted by parents to provide a Catholic education — but what Colorado is saying is we want to tell you what it means to provide a Catholic education,” he said. “I think that’s where the problem is.”
St. Mary also notes in court filings that the “record is devoid of a single instance” of an LGBTQ+ parent trying to enroll at an archdiocese preschool.
Since the litigation began, Nagle has been working at St. Mary as a communications liaison between the school and its parents. Nagle is not a party in the case, but her circumstances mirror those of the named plaintiff parents, Daniel and Lisa Sheley, who also claim they’ve been unfairly excluded from the pre-K assistance.
For her part, Nagle says the exclusion of children of LGBTQ+ parents LGBTQ+ hadn’t played heavily into her thinking about the best preschool for her kids.
“I didn’t choose this school because of who is allowed and who isn’t allowed,” Nagle said. “I chose this school for what it does have.”
From her perspective, the state has undermined its own nondiscrimination principles by discriminating against Catholic families like hers.
“If a family with same sex-parents wanted to opt into this program, they could,” Nagle said, by choosing to send their kids to eligible preschools. The state “created a program deemed universal for all, and the ones that are being excluded are thousands of religious families — Catholic families … so it’s just unjust, it’s an injustice.”
James R. Golka, archbishop of the Denver Archdiocese, wrote in a recent Denver Post op-ed that enrollment at the archdioceses’ schools has dropped 20 percent since the pre-K program began. Two schools, he said, have since closed — although the state argues that at least one of those schools had been struggling with low enrollment before the program went into effect.
Still, Golka said the program’s requirements present parents with a perilous choice: “abandon your faith, or stay out.”
Constitutional religious rights and nondiscrimination laws have collided at the Supreme Court in recent years, with the court frequently siding with mainstream Christians. In 2018, the court ruled in favor of a Colorado baker who refused to make a wedding cake for a same-sex couple.
Two years later, the court ruled in favor of Catholic Social Services (CSS), a foster care service that had lost its contract with the city of Philadelphia because it would not serve same-sex couples. The justices ruled unanimously for CSS, finding that the city had violated the organization’s free-exercise rights because it allowed exemptions to its nondiscrimination rules but did not extend one to CSS.
In decisions over the last decade, the court has also permitted public funds to flow to religious schools. Most recently, in 2022, the court found that Maine’s exclusion of religious schools from a tuition assistance program was unconstitutional. Because the program allowed parents to use the benefit for secular private schools, it had discriminated against religious schools, the court reasoned in the 6-3 ruling along ideological lines.
“The Roberts court has been very aggressive in expanding free-exercise protections,” Chemerinsky said, referencing Chief Justice John G. Roberts. Chemerinsky added that the St. Mary case could continue that shift.
“There’s a large underlying question,” he said, one that has been a recurring theme in recent religion cases. “To what extent should people be able to discriminate against others on account of their religious beliefs?”
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