Colorado's Catholic preschools get their day at the Supreme Court on Tuesday, in a case that decides whether a universal program can keep them out

Colorado calls the program universal. The Catholic preschools at the center of this case are not in it, and on Tuesday the Supreme Court will hear why each side says the Constitution is on its side.

The program began in 2023. Every Colorado 4 year old became eligible for 15 hours a week of state funded preschool before kindergarten, a benefit the Becket Fund, which represents the Catholic families and parishes, puts at about 6,000 dollars per child. Public and private providers could take part, including faith based ones, if they signed the program's nondiscrimination agreement. The Archdiocese of Denver's preschools did not sign. Their policy is to admit students only from families who support Catholic beliefs, including the Church's teaching on same sex relationships and gender identity, and the agreement would not let them keep that policy while taking the money.

The archdiocese, other Catholic entities and a Colorado family sued as the program was ramping up, arguing the condition violates the Free Exercise Clause of the First Amendment. A federal judge in Colorado upheld the program in 2024, ruling its rule was neutral and applied to everyone, and the Denver based 10th Circuit affirmed last year. The challengers say the Supreme Court's recent decisions, including Carson v. Makin in 2022, bar a state from denying an otherwise available public benefit to religious schools because of their religious exercise.

Colorado's officials answer that the preschools are asking for legal permission to discriminate against 4 year olds and their families while receiving taxpayer dollars. More than 40 faith based providers joined the program when it began, including Catholic Charities preschools, a point the state side uses to argue the door was never closed to religion, only to one condition. The court hearing the case has a 6 to 3 conservative majority that has taken a broad view of religious liberty, and it has ruled against Colorado's antidiscrimination efforts before, in the cases of a cake baker and a website designer who refused services for gay customers. A decision is expected by late spring 2027, and it will govern far more than preschool, because every state program that funds private providers on conditions will read it closely.