A federal judge heard arguments and testimony beginning on Tuesday over whether Colorado’s new universal pre-kindergarten program unconstitutionally forces a pair of Catholic preschools to violate their religious beliefs about sexual orientation and gender identity in order to participate as providers.

In August, the Archdiocese of Denver and other plaintiffs brought suit against the state, arguing the preschools under the archdiocese’s control wished to participate in the publicly funded pre-K program but could not do so as long as they are prohibited from discriminating on the basis of LGBTQ status.

The plaintiffs are seeking a declaration that the non-discrimination requirements violate their First Amendment rights, and a court order prohibiting Colorado from denying Catholic preschools the opportunity to participate — notwithstanding the church’s disapproval of same-sex relationships or gender identity that does not adhere to a person’s sex assigned at birth.

“Many families who come to these schools are specifically seeking a Catholic education. And that’s why they chose these schools,” attorney Nicholas R. Reaves said in his opening statement.

Days before the trial began, U.S. District Court Senior Judge John L. Kane dismissed the archdiocese itself from the case, finding it did not have standing to pursue claims on behalf of its 36 preschools. He agreed that the remaining plaintiffs — St. Mary Catholic Parish in Littleton, St. Bernadette Catholic Parish in Lakewood, and Daniel and Lisa Sheley, parents who worship at St. Mary — have outstanding factual disputes that he could not resolve without hearing evidence.

Kane alluded at the outset to the more progressive positions Pope Francis has taken on sexual orientation and gender identity, including his recent approval of priests blessing same-sex couples. However, Kane indicated the beliefs at issue are those held by the Archdiocese of Denver and implemented through its preschools, and not the actions of the pope.

“I am not going to invade the question of authenticity of doctrine or belief. I’ve read some cases in which courts have done that and they’re wrong,” Kane said. Whether the archdiocese’s beliefs are protected by the First Amendment, he added, “is another matter.”

Beliefs in conflict

In 2020, Colorado voters approved funding for a universal preschool program providing at least 15 hours of schooling each week, a step toward one of Gov. Jared Polis’ key campaign promises.

Although enrollment issues and funding uncertainties have arisen with the rollout of the program, 61% of 4-year-olds in Colorado are participating this school year through 1,905 providers. That number includes approximately 40 faith-based preschool operators that enroll more than 900 children.

Multiple religious preschool operators filed First Amendment challenges, arguing they should be allowed to participate and receive public funding, despite holding beliefs that violate the non-discrimination requirements of the program.

In October, U.S. District Court Judge Daniel D. Domenico granted preliminary protection to a Chaffee County Christian academy. Even though the school was actively participating in the program and receiving public money, its rules on bathroom usage and personal pronouns run contrary to the non-discrimination language of the provider agreement. Domenico wrote that Colorado’s interest in eliminating discrimination “is not ‘of the highest order’ such that the anti-discrimination rules can survive.”

The Catholic plaintiffs cited Domenico’s decision and called their case an “easier” one to decide because, unlike the Chaffee County school, the parishes completely abstained from signing up as providers.

On Dec. 30, Kane issued a written order, addressing the state’s motion to dismiss the Catholic schools’ claims and the plaintiffs’ related motion to resolve the case in their favor without a trial. He agreed the two specific parishes in the lawsuit had alleged a valid injury: an inability to participate as providers because the state will not grant them a “religious exemption” from the non-discrimination rules.

St. Mary and St. Bernadette “cannot be blamed for foregoing enrollment in a program they understand to conflict with their beliefs,” he wrote. Likewise, the Sheleys, as individual plaintiffs and St. Mary’s parishioners, were allegedly deprived of the opportunity to enroll their preschool-age child at their parish as “the result of government policy and action.”

On the other hand, Kane noted that the archdiocese itself is not subject to the non-discrimination requirement, nor is it interchangeable with its 36 parish preschools. Therefore, he dismissed the organization from the case.

As for the request to decide the case without a trial, Kane noted there were issues that would benefit from testimony. For example, he wondered whether the program’s special accommodation for students with disabilities also requires the state to specially accommodate schools’ religious beliefs, to the extent those beliefs exclude the LGBTQ population.

“At the trial, the parties will need to address whether serving only individuals with specific disabilities or reserving spots for those individuals is equivalent to failing to provide children an equal opportunity to enroll and receive services regardless of their disability. I am doubtful that it is,” he wrote. “I also am not certain that allowing discrimination based on certain statuses negates efforts to prevent it based on other statuses.”

Not a ‘good fit’

On the first day of testimony, Kane heard from witnesses employed by the archdiocese that the teachings of parish schools stem from the guidance of the archbishop himself.

“The church has a particular understanding of marriage as being between a man and a woman, given the understanding of the body,” said Abriana Chilelli, the acting superintendent of Catholic schools. “We would never want to cause conflict with what parents are teaching in their home. So, the guidance does communicate to our school leaders that students in that circumstance with parents in a same-sex couple — that enrollment would not be possible given the confusion it would create for the child and the family.”

Avery Coats, the principal at St. Bernadette’s parish school, testified that last year, the family of a fifth-grade student was interested in enrolling. However, the parents were a same-sex couple and St. Bernadette “ultimately decided it wouldn’t be a good fit” because “we were concerned that this teaching would cause great conflict within their own family structure.”

The state called M. Michael Cooke, who helped launch the pre-K program and the related Colorado Department of Early Childhood. She said providers are able to have their own guidelines for operations, and faith-based providers “presumably” could institute rules surrounding religious diets, for instance.

“Where we would object is if there was something in a statement that a family needed to sign or acknowledge that is contrary to anything that’s in statute or in policy or rule of the program,” Cooke explained.

The case is St. Mary Catholic Parish et al. v. Roy et al.