Colorado's Preschool Nondiscrimination Condition Unconstitutionally Excludes Religious Schools and Should Be Struck Down
Source: Kevin Kreutz. "SCOTUS Weighs If Colo. Can Coerce Christians On Trans Issues." November 3, 2026. thefederalist.com
The Gist
The author argues that Colorado told Catholic preschools they could take part in its free preschool program only if they accepted children regardless of sexual orientation or gender identity, which conflicts with church teaching. He says this effectively shuts religious schools out, treats religion worse than secular exceptions the state allows, shows hostility to faith, and interferes with parents' rights, so the Supreme Court should strike it down.
Conclusion
The Supreme Court should rule that Colorado violated the First Amendment's Free Exercise Clause by conditioning universal preschool funding on Catholic preschools enrolling children regardless of sexual orientation or gender identity, and should reverse the Tenth Circuit.
Premises
- Supreme Court precedents (Trinity Lutheran, Espinoza, Carson) hold that a state funding private education may not exclude schools because they are religious or will use funds religiously, and a condition that faithful Catholic schools cannot satisfy excludes them as surely as an explicit ban.
- Colorado's nondiscrimination condition is not neutral or generally applicable because the state granted 17 exemptions (e.g., for vaccinated children and a particular subdivision), creating an individualized exemption mechanism under Fulton.
- Colorado treats comparable secular activity more favorably than religious activity (e.g., preferences for special education and Head Start students), which triggers strict scrutiny under Tandon v. Newsom.
- Colorado displayed hostility toward sincere religious beliefs by likening the parishes' beliefs to stigmatization and 1970s segregation academies, which Masterpiece Cakeshop treats as a free exercise violation.
- Under Mahmoud v. Taylor and Mirabelli v. Bonta, policies that substantially interfere with parents' right to direct their children's religious upbringing trigger strict scrutiny, and Colorado's condition burdens such parents by denying them a benefit their taxes fund.
- The Tenth Circuit's reasoning would allow any state to nominally open school-choice programs to religious schools while imposing conditions faithful institutions cannot meet, making Carson a dead letter.
Assumptions
- Requiring enrollment without regard to sexual orientation or gender identity, and the schools' admission practices based on church teaching, constitute religious exercise protected by the Free Exercise Clause.
- Conditioning a public benefit on compliance with a rule that burdens religious practice is equivalent to a direct exclusion of religious institutions.
- Exemptions for vaccination status, subdivision, disability, and income are legally comparable to a religious exemption for purposes of Tandon and Fulton.
- Litigation rhetoric by the state's lawyers can be treated as evidence of official hostility under Masterpiece.
- Parental rights recognized in Mahmoud and Yoder extend from public-school curriculum opt-outs to participation in a funded preschool program.
- The state has no compelling interest in universal nondiscrimination rules sufficient to survive strict scrutiny.
- The recent trend of Supreme Court religious liberty decisions reflects the original meaning of the religion clauses and should be continued.