The US Supreme Court on Monday said it would hear a challenge to a Colorado law that requires private religious preschools to accept children of same-sex couples in order to receive state funding.

Two Catholic preschools, their parishes, the Archdiocese of Denver, and parents of preschool-aged children sued the state in 2023 over a nondiscrimination requirement contained in enabling legislation for Colorado’s Universal Preschool Program, which establishes funds to support universal, free preschool in the state. To receive funding, the law requires preschools to:

… provide eligible children an equal opportunity to enroll and receive preschool services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability, as such characteristics and circumstances apply to the child or the child’s family.

Plaintiffs argued the provision clashes with Catholic beliefs and violates religious protections under the First Amendment’s Free Exercise Clause. By admitting children of same-sex parents to their institutions, plaintiffs claimed “intractable conflicts” would result.

A federal district court ruled for the state, and plaintiffs appealed. In September 2025, the US Court of Appeals for the Eleventh Circuit upheld the lower court decision, ruling that the law did not violate the Constitution.

The appellate court relied on a line of Supreme Court cases that establish a framework with which to analyze Free Exercise Clause claims. The framework, set out in Employment Division v. Smith, distinguishes laws that directly burden “religious status” from laws that only incidentally burden religion. Laws under the first category are presumed invalid, while laws under the second are valid so long as they are “neutral and generally applicable,” and the state shows a challenged law is rationally connected to a “legitimate government interest.”

Arguing within this framework, plaintiffs pointed to a catchall provision in the nondiscrimination requirement that allows preschools to weigh applications based on a number of category preferences, including “the [child’s] and/or [family’s]…specific community,” so long as these preferences do not run afoul of the requirement. Plaintiffs claimed this provision operated as an exemption and, considering limitations placed on the Catholic schools, showed the law was not “generally applicable.”

However, the court ruled that because the preference-filtering system did not allow categorical exclusions, the law remained valid. It concluded the catchall was sufficiently limited, did not function as a de facto loophole, and maintained general applicability.

In their petition to the Supreme Court, plaintiffs revived the “catchall provision argument,” contending that:

Colorado…permits numerous exemptions from this requirement…allowing preschools to admit only “children of color,” “gender-nonconforming children,” “the LGBTQ community,” low-income families, and children with disabilities. But Colorado excludes Catholic preschools because they admit only families who support Catholic beliefs, including on sex and gender.

Plaintiffs also requested the Supreme Court overrule Employment Division v. Smith, citing a recent Supreme Court holding that courts “need not ask whether the law at issue is neutral or generally applicable.”

The case adds to a number of high profile Supreme Court cases involving LGBTQ+ rights and Colorado law. In March, the court struck down a state ban on conversation therapy for minors. In 2023, the court held that the state could not compel a webpage designer to create wedding websites for LGBTQ+ couples.

Parties will present oral arguments in late 2026.