"The law really was about implementing a program that said we want every kid, no matter where you live, to be able to have access to universal preschool," says Steve Fenberg, who served as president of the Colorado state Senate when the Pre-K program was enacted, complete with a $6,300 benefit for each child enrolled in the program every year, money that comes from a tobacco tax.
To accomplish that, the state did something most other states have not. It created a broad plan, including religious schools, as long as the schools abide by a state law that bars discrimination based on race, religion, sexual orientation or gender identity.
Colorado state Rep. Emily Sirota, a prime sponsor of the universal Pre-K bill, emphasizes that the state wanted parents to have "a robust choice" about where their 4-year-olds would go to school.
Indeed, she notes that the Catholic Church initially endorsed the program, and Catholic Charities continues to participate, along with other religious groups, including at least 35 Christian schools, one Muslim and three Jewish schools.
But now, the Church wants to discriminate against children of same-sex or transgender parents, citing the church's belief that same-sex relationships and gender therapy are intrinsically disordered and sinful.
The Denver Archdiocese and two parishes challenged the law in court, represented by the Becket Fund for Religious Liberty and its CEO, Mark Rienzi. He maintains that the Colorado law flatly discriminates against Catholic schools.
"They're only excluding religious schools that are organized around beliefs that Colorado doesn't like. And that's the constitutional problem," says Rienzi. "Not everybody has to be Catholic to show up, but they do have to agree to support Catholic teachings and not publicly contradict Catholic teachings. That's the way these schools are set up."
Therefore, the church wants an exemption from the state's anti-discrimination law, which makes it illegal to refuse entrance to school for 4-year-olds whose parents or potentially other family members are gay or trans.
The present Court, with its Catholic supermajority, has a strong inclination to favor religion over all other considerations, so it's hard to imagine Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Coney Barrett siding with the state of Colorado.
If the Supremes rule the way they are predisposed to, Colorado taxpayers will probably be forced to subsidize anti-LBTQ discrimination. That includes, of course, Colorado taxpayers who would be discriminated against.
Alternatively, the Colorado legislature would have to limit the Pre-K program to public schools only; this Court has already ruled, in Espinoza v. Montana Department of Revenue (2020) that state-based scholarship programs that provide public funds to allow students to attend private schools cannot discriminate against religious schools.
One could reasonably expect that LGBTQ families might not wish to send their four-year-old children to schools where they would be taught that mommy and mama, or daddy and dada, or their transgender-neutral parents whatever they call them, are going to hell. I haven't come across any lawsuits having been brought against the Denver Archdiocese to force it to admit children of same-sex, transgender, divorced, excommunicated, or atheist parents; so I posit that their preschool could have gone on discriminating against whomever it wanted to as long as they didn't post it on the signboard at the entrance.
After all, the current Supreme Court also believes that discrimination is discrimination only if the party doing the discriminating publicly confesses that they discriminate.
Which only affirmative action programs and DEI policies ever get caught doing.
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