The U.S. Supreme Court will hear a case Nov. 3 on whether a religious preschool can take public money but still discriminate against LGBTQ children and those with LGBTQ parents. LGBTQ advocates have been filing amicus briefs explaining the harm this would do. Let’s take a look.
First, some background: In 2020, voters in Colorado approved a taxpayer-funded, voluntary Universal Preschool Program (UPK), available to all children in the state. Preschool providers who wish to be part of the program and receive state funding must sign a nondiscrimination agreement, guaranteeing equal opportunity regardless of the sexual orientation or gender identity of children or their family members, among other protected characteristics.
The case, St. Mary Catholic Parish v. Roy, began when two Catholic parishes, the Archdiocese of Denver, and two parents argued that this requirement conflicted with their religious beliefs and their First Amendment rights. They sought an exemption. The U.S. Court of Appeals for the Tenth Circuit in September 2025 affirmed a district court ruling rejecting their argument. The plaintiffs appealed, and the U.S. Supreme Court took the case.
“There is something uniquely insidious about using young children as the vehicle for denying families equal access to a public benefit,” says the amicus brief filed jointly by Family Equality, a national organization for LGBTQ+ parents and their children; COLAGE, a national organization for people with one or more LGBTQ parents, and Rocky Mountain Equality, a Colorado-based LGBTQ advocacy organization.
The brief is clear that “a religious provider may choose whom it serves on its own terms as a private institution; however, it may not do so while receiving public UPK funds.”
As with the “Voices of Children” briefs filed by Family Equality and COLAGE in the landmark marriage equality cases of Windsor (2013) and Obergefell (2015), the brief in St. Mary includes many real stories from LGBTQ families alongside the legal arguments.
In one story, a woman identified as L.C. explained that her two working moms had needed childcare for her and her brother and were happy to discover that a former neighbor was a teacher at a nearby Christian preschool. The school rejected the family, however, because it had two moms.
Her parents then “had to rush to recover her spot in her former preschool instead — one that was nowhere near where the family currently lived.”
he situation caused them a lot of stress. “If the government were to say that kids who have same-sex parents don’t get access to the public programs that other kids do … it just, to me, really seems like it’s state-funded discrimination,” L.C. said.
Some might wonder why any LGBTQ parents would ever want to enroll their children in a faith-based school not known for being LGBTQ friendly. For families like L.C.’s, it might be a matter of convenience; for others, it could be something they deliberately seek.
Stasia Bakhit, a lesbian parent, “wanted to send her kids to the same Catholic school generations of her family had attended,” the brief says. In her words, “Catholic [school] felt like home.”
Similarly, gay father and grandfather Brian Rink had gone to Catholic school and later enrolled his daughter because he felt it would provide a “firm moral foundation.” All families should have the option of enrollment, he said, “no matter the identity of the parent(s).”
Should the plaintiffs prevail, the brief says, “The immediate consequences may be felt most acutely by parents … but it is also a message that children carry with them.”
Would a preschooler even know that they were barred from a school, though? Jamie Spiers, who has a lesbian mom, said in the brief that she thinks it likely. A child with LGBTQ parents might, for example, still be part of a confirmation class with peers from that school and be asked why they don’t go there. Their parents must then decide “whether and how to explain the discrimination their family experienced.”
But the bigger problem, Spiers said, is “the suggestion that state-sponsored discrimination is acceptable as long as the person subjected to it remains unaware that it occurred.”
Many other organizations and scholars also filed briefs in support of LGBTQ families and youth; here are some points from just a few: The brief from Gay and Lesbian Advocates and Defenders (GLAD Law) and Lambda Legal discusses why the UPK’s nondiscrimination requirement “serves the state’s compelling interest,” an important legal benchmark. It explains, “While preschool-aged children do not typically assert clear LGBTQ identities, they explore gender and relationships in a developmentally appropriate way, and cross-gender preferences may arise even at that young age.
“Colorado has a compelling interest in protecting all students — including those with LGBTQ parents, who are gender-diverse or who may be perceived as LGBTQ — from the harms of discrimination in educational settings.”
The brief from scholars at the Williams Institute at the UCLA School of Law shares social science research and data to prove that those harms “are real and consequential.” Colorado’s equal opportunity requirements, it said, are therefore “a matter of public health.”
And the NAACP and the NAACP Legal Defense and Educational Fund’s brief says that discrimination is “especially noxious when those most burdened and stigmatized are children.” It noted, too, “This court has consistently held that religion does not — and cannot — justify violations of antidiscrimination measures.”
An exception to those measures would also “uniquely harm Black members of the LGBTQIA+ community who face intersectional discrimination” and would open “broad swaths of civil rights laws” to challenges, the NAACP brief notes.
A ruling in the case is expected by next June or early July.
Dana Rudolph is the founder and publisher of Mombian (mombian.com), a two-time GLAAD Media Award-winning blog for LGBTQ parents, plus a searchable database of 2,000+ LGBTQ family books. She serves as an unpaid, volunteer member of Family Equality’s Communications Committee.