179 lawmakers tell SCOTUS not to let taxpayer money-accepting religious preschools reject LGBTQ+ families

The Congressional Equality Caucus said Monday that 179 members of Congress, including 13 senators, had signed a brief urging the U.S. Supreme Court to preserve Colorado’s power to prevent publicly funded preschools from denying admission to children because they or their parents are LGBTQ+.

The brief in St. Mary Catholic Parish v. Roy is led by U.S. Rep. Mark Takano of California, the caucus chair, with Democratic Sens. Tammy Baldwin of Wisconsin and Jeff Merkley of Oregon. Its signers include Reps. Hakeem Jeffries, Katherine Clark, Pete Aguilar, Nancy Pelosi, and every Equality Caucus co-chair.

“In 2020, Coloradans voted to ensure every child in the state would be able to benefit from a publicly-funded universal pre-school program, but the schools in this case want to take these funds and turn away LGBTQ+ kids and kids of LGBTQ+ parents—despite the program’s nondiscrimination policy. This is wrong,” Takano said in a statement. “Public dollars are for the good of the public, and this publicly funded program’s nondiscrimination policy reflects that.”

Related: The Supreme Court is taking up a case that could shut LGBTQ+ families out of preschool

How the preschool case reached the Supreme Court

Colorado voters approved a funding source for universal preschool in 2020. The current program offers all 4-year-olds up to 15 hours of free preschool weekly in the year before kindergarten through public, private, and faith-based providers. Participating schools must provide equal enrollment opportunities regardless of characteristics including sexual orientation and gender identity.

Two Catholic parishes sued alongside the Archdiocese of Denver and parents Daniel and Lisa Sheley. The schools say Catholic teaching requires them to consider the sexual orientation and gender identity of children and parents during admissions. They do not categorically exclude children with same-sex parents, the 10th U.S. Circuit Court of Appeals found, although Wellspring Catholic Academy previously denied admission to a fifth-grade applicant with same-sex parents.

The Advocate reported when the case went to trial in 2024 that the parishes argued the rule could prevent them from prioritizing Catholic families and require them to admit transgender children and children with same-sex parents. Colorado maintained that Catholic preschools are treated like other providers.

The schools also argue that Colorado’s matching preferences and temporary waivers for some quality standards favor secular interests while denying religious accommodations. The 10th Circuit held that neither created a comparable exception from the nondiscrimination rule. After a three-day trial, the district court denied the schools an exemption from the sexual orientation and gender identity provisions. A unanimous 10th Circuit panel affirmed that ruling.

Related: Colorado Catholic preschools say they have a right to discriminate against LGBTQ+ people

LGBTQ+ families tell the court what exclusion means

COLAGE, Family Equality, and Rocky Mountain Equality submitted a separate brief Monday describing the consequences for children with LGBTQ+ parents. The organizations argue that LGBTQ+ families may value religious education for faith formation, community, and tradition even when a school does not fully accept them.

More than 40 faith-based providers, including six Catholic Charities preschools within the Denver Archdiocese, participated in the program’s first year. The organizations argue Colorado does not regulate religious instruction. Schools may teach their faith but may not reject an eligible child because of the child’s family while receiving public money, they say.

“St. Mary wants public money to turn a four-year-old away based on who their parents are. I know what that message does to a child,” Joseph Wright, an adult child of a lesbian mother, said.

The brief describes families losing access to nearby preschools and scrambling to arrange transportation or leave work. It argues that an alternative school does not erase the harm of government-funded exclusion.

Related: Denver Archdiocese Sues to Deny LGBTQ+ Families Access to Preschool

What the justices will decide

The Supreme Court will hear arguments November 3 on two questions. The first concerns Employment Division v. Smith, the 1990 ruling allowing neutral, generally applicable laws that incidentally burden religion. The justices will consider what government discretion or secular exceptions trigger strict scrutiny.

The second concerns Carson v. Makin, the 2022 decision prohibiting Maine from excluding religious schools from a tuition program. The question is whether that rule covers only explicit religious exclusions or also neutral conditions a religious institution says it cannot follow. The justices declined the schools’ request to consider overturning Smith entirely.

Congress divides over public money and discrimination

“If you want to get taxpayer dollars to educate our kids, you cannot discriminate against them or their parents for who they are or who they love,” Baldwin said.

“Discrimination against preschoolers and parents who are part of the LGBTQ+ community has no place in America,” Merkley said.

The congressional brief responds to a filing from 43 Republican lawmakers led by Sen. James Lankford of Oklahoma and Rep. Tim Walberg of Michigan. They argue Colorado is excluding the schools because of their beliefs. The Trump administration has also sided with the Catholic schools.

“To let certain schools accept public funding while excluding students solely because of their sexual orientation or gender identity, or those of their parents, contradicts the very purpose of nondiscrimination laws,” said Sharon McGowan, senior vice president of policy and litigation at the Human Rights Campaign.

A decision is likely by June 2027.