The U.S. Supreme Court yesterday heard arguments in a case about whether religious preschools can take public money but still discriminate against LGBTQ children and those with LGBTQ parents. Meg York, a COLAGE attorney whose brief was cited by the court, spoke with me about the hearing.
The Case
In 2020, voters in Colorado approved a taxpayer-funded, voluntary Universal Preschool Program (UPK), available to all children in the state. Preschool providers who wish to be part of the program and receive state funding must sign a nondiscrimination agreement, guaranteeing equal opportunity regardless of the sexual orientation or gender identity of children or their family members, among other protected characteristics.
The case, St. Mary Catholic Parish v. Roy, began when two Catholic parishes, the Archdiocese of Denver, and two parents argued that this requirement conflicted with their religious beliefs and First Amendment rights. They sought an exemption from the nondiscrimination requirement. The U.S. Court of Appeals for the Tenth Circuit in September 2025 affirmed a district court ruling rejecting their argument. The plaintiffs appealed, and the U.S. Supreme Court took the case.
The Arguments
Many of the arguments at the hearing involved detailed legal issues about the level of judicial review that applies here and about precedents set in previous cases. I’ll let actual attorneys weigh in about that in other media, as I’m sure they will in the coming days. But Colorado Deputy Solicitor General Helen Norton, who argued for the state, boiled the case down to the practical effects of discrimination on children and families:
Families are harmed when they’re turned away from the publicly funded schools that make their lives work because of their protected class status. Think of the parent who needs a school that opens at 7:00 a.m. so she can get the bus that takes her to work. Think of the parent who needs a school that will take all three of her kids so she doesn’t have to shuttle them among three different schools. Think of the parent who needs the neighborhood school so that her neighbor can pick up her kids when she can’t get home in time. For that parent to be turned away from those schools that make preschool possible for her family because of her protected status harms families and undermines Colorado’s interest.
[Ed. note: “Protected class status” means being part of a group that is legally protected from discrimination.]
Norton notably supported her argument by referencing the amicus brief (PDF) from LGBTQ advocacy organizations COLAGE, Family Equality, and Rocky Mountain Equality, and one from the National Women’s Law Center (PDF), which shared stories from real LGBTQ parents and their grown children. These stories told of seeking to enroll the children in religious schools, and sometimes being turned away. (See more in my earlier piece about some of the amicus briefs.)
Justices Sonia Sotomayor, Ketanji Brown Jackson, and Elena Kagan, the three liberal justices, seemed the most favorably inclined towards Colorado’s position and the support of LGBTQ children and families. Sotomayor told Principal Deputy Solicitor General Sarah Harris of the Department of Justice, who argued for the Catholic preschools, “What you’re basically saying is we can exclude people merely because exposure to them would cause us harm.” When Harris denied that, Sotomayor persisted, “That is completely what you’re saying. We can exclude children of same-sex marriage. We can exclude children who are trans, who might have transgender feelings or beliefs, because exposing other children to them creates a problem.”
And Jackson told the plaintiffs’ attorney Nicholas Reaves, “It seems to me you’re asking for a special rule for religious schools, that when Colorado says anyone who receives these funds has to be open to everyone and can’t discriminate, what you’re asking for in the context of this Free Exercise claim is a special rule for religious schools to be able to not follow that condition.”
Justice Kagan agreed, noting, “It’s a case where you’re saying, no, because of religious faith, we need a special exemption, an accommodation, a way of being treated differently with respect to that neutral anti-discrimination principle.”
Jackson also looked at the ramifications that the plaintiffs’ arguments could have in other areas of civil rights, noting, “There’s no principled basis, I think, to distinguish between an entity that says my religious faith says my children can’t go to school with the children of gay people from a religious entity that says my religion says my children can’t go to school with the children of black people.”
Several of the remaining justices, unsurprisingly, seemed less inclined to worry about these threats to children and civil rights and more concerned with the impact on religion. When Norton said that the UPK program had welcomed religious preschools from the start and that Colorado had no animus or hostility towards them, for example, Barrett responded, “Well, does it have to be animus?… If you know that the effect of choosing that requirement [to sign the nondiscrimination agreement] will push out those with a contrary belief, how is that different?”
Justice Alito opined, “So we have here a requirement that has a very severe impact on certain religions and that was something that everybody could have anticipated…. And we have little evidence of a practical problem … that there are LGBTQ couples who cannot find other preschools to send their children to.” (In response, I refer you back to Norton’s long quote and the amicus briefs above.) He also noted previous U.S. Supreme Court cases, Chiles v. Salazar, 303 Creative, and Masterpiece Cakeshop, all of which originated in Colorado and involved people claiming that the First Amendment protected their right to discriminate against LGBTQ people. “What should we make of all of this?” he asked.
Norton replied again that the UPK program had no anti-religious animus, and that in creating it, in fact, “Colorado here has made several choices, choices they didn’t need to make that were all about opening this program to religious people and religious providers.”
Some Takeaways
The voices of kids with LGBTQ parents deserve to be in all of the places where decisions are being made about them.
Meg York
COLAGE Chief Legal and Policy Officer Meg York, who co-authored her organization’s amicus brief, spoke with me by phone after attending the hearing. She noted that the ruling (expected by next June or early July) could be written broadly or narrowly, which would determine the scope of its impact.
York also stressed the difference in approach between the two sides. Colorado, she said, “was specifically trying to include religious providers. Everything they’ve done was in favor of equal opportunity and expanded access.” The petitioners, in contrast, “were trying to draw a divisive line between religious freedom and LGBTQ rights.”
She is encouraged, however, by the idea that “religious freedom and LGBTQ equality can go hand in hand, and our brief showed that.”
Family Equality Vice President of Public Policy Luce Remy added in a statement yesterday, “This case asks whether children should be deemed less deserving of the same publicly-funded educational opportunities as others just because of who their parents are. To us, Colorado’s lawyers, and the many storytellers highlighted in our brief, the answer is obvious: Taxpayer funds should never be used to discriminate against four year-olds.”
No matter the outcome, York said, the hearing showed that “The voices of kids with LGBTQ parents deserve to be in all of the places where decisions are being made about them.”
Disclosure: I serve as an unpaid, volunteer member of Family Equality’s Communications Committee.