Colorado approved universal preschool in 2020, covering 15 hours a week worth more than $6,000 per year. To participate, providers must sign a contract promising equal enrollment opportunity regardless of sexual orientation or gender identity. The Archdiocese of Denver runs 34 Catholic preschools. None participate.

Catholic parents Daniel and Lisa Sheley estimate they’ve lost about $24,000 in reimbursements because their children attend St. Mary in Littleton.

“It was billed as universal, and instead we’re the ones that are being discriminated [against].”

The Sheleys joined two parishes — St. Mary and St. Bernadette in Lakewood — and the Archdiocese in suing the state. Their argument: Colorado designed a contract Catholic institutions cannot sign, then blamed them for opting out.

The Church’s teaching is clear and on the record. The Catechism says parents hold the primordial right to educate their children, and that persons with homosexual inclinations must be accepted with respect and compassion. A parish can hold both teachings. What it cannot do is surrender control over admissions to a state agency.

The First Amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Court applied that command to the states in Carson v. Makin, writing that a state cannot “disqualify some private schools solely because they are religious” once it decides to subsidize private education.

Justice Barrett asked why Colorado could impose a condition it knows schools will be unable to agree to. Chief Justice Roberts said the effect was pretty much the same as Maine’s unconstitutional scheme in Carson. Justice Kagan countered that this is a case of a state enforcing its own nondiscrimination principles.

Justice Jackson told the schools’ lawyer, “your schools want to discriminate by exclusion.” Justice Sotomayor warned of a great cost to someone whichever way the Court rules.

Colorado’s program includes over 2,000 participating preschools. It also allows enrollment preferences — for congregation members, siblings, children with disabilities, and low-income families. The district judge who first heard the case, John Kane, found Colorado cannot have it both ways on a congregation preference that lets faith-based providers favor their own members while banning Catholic admissions criteria.

Justice Kavanaugh asked the question that cuts through the legal fog: why not seek the win-win? Families have plenty of doors. Catholic schools represent 34 out of over 2,000 providers. Accommodating them wouldn’t shut anyone out.

The Court can apply strict scrutiny and make Colorado prove why 34 schools can’t be accommodated.

SCOTUSblog reports a majority appeared to favor that standard during oral arguments. Colorado can also publish every provider’s admissions policy so families know before they apply. Other states can fund the child and let the family choose — the model Carson already protects.

The fix is modest. The principle is not. Colorado wrote a contract Catholic schools couldn’t sign, then called their refusal a choice. A free society writes better contracts.

A decision is expected by summer 2027.