Federal Judge Denies Denver Archdiocese’s Request to Discriminate in School Funding

Archbishop Samuel Aquila

A federal judge has ruled that Catholic preschools in Colorado may not discriminate against students and families on the basis of sexual orientation and gender identity.

The ruling stems from a lawsuit filed by the Archdiocese of Denver and two Catholic parishes, St. Mary’s Church, Littleton, and St. Bernadette’s Church, Lakewood, against state education officials. The lawsuit claimed Colorado was preventing their ability to discriminate based on sexual orientation or gender identity, a violation of religious freedom.

Last year, Colorado’s launched a universal pre-kindergarten program (UPK) that provides funding so children can receive 15 hours a week of free preschool education. A variety of programs—including school-based programs, family home providers, private schools, and faith-based schools—are eligible to receive funding, provided that they adhere to state non-discrimination protections covering race, ethnicity, sexual orientation, gender identity, lack of housing, income level, and disability.

Catholic officials involved in the lawsuit argued that they should be allowed to participate in the program without adhering to the non-discrimination protections, claiming the archdiocese’s 26 preschools were being unlawfully prevented from receiving funding.

Coloeado Public Radio reported that U.S. District Court Senior Judge John L. Kane ruled the schools could discriminate on the basis of religion, but not on other protected categories, including sexual orientation and gender identity. The judge cited an existing ‘congregation preference’ as the basis for his ruling:

“Colorado’s universal preschool law allows schools to give preference to lower-income families and also allows religious preschools to give seat preference to members of their congregations, so it follows that they can also determine whether to accept families based on a child or family’s religion.”

Thus, a Catholic school could choose to admit only Catholic students, but it cannot discriminate against LGBTQ+ students and families. For violating the church’s right to deny based on religion, the judge fined Colorado $1 in damages. A second, separate lawsuit about the preschool program by a Christian school is ongoing.

Kane’s ruling firmly upheld protections for LGBTQ+ individuals, according to Colorado Politics. In his ruling, the judge wrote:

“When the State is footing the bill, it has a compelling interest in deciding that children may not be denied this experience based on specified discriminatory factors…The requirement applies to UPK providers, regardless of their religious or non-religious character. The purpose of the requirement is not to invade religious freedom but to further the implementation of a strongly embraced public value.

“The compelling nature of the state’s interest in ensuring LGBTQ+ children and their families do not face discriminatory barriers is supported by the evidence in the record…The testimony at trial established the positive impact preschool attendance, and in particular quality preschool services, can have on students and their families.”

Many Catholics vocally opposed the initial lawsuit, including Beth and Dan Mueller Stewart, parents of a preschooler who, at the time, attended one of the schools involved in the lawsuit. Their open letter to Denver’s Archbishop Samuel Aquila, published on Bondings 2.0, requested that the lawsuit be dropped and a more compassionate stance towards LGBTQ individuals adopted. Ahead of this new ruling, the couple wrote:

“Today, in Colorado and everywhere, Jesus would embrace LGBTQ people and families—and he asks us to do likewise. As Christ’s representative on earth, the Church has both an opportunity and a responsibility here to care for the most vulnerable. Our hope is that this care means every child and every family who wishes to participate in Catholic education, whether they align fully with church teaching or not, could be welcomed by the Church with a loving embrace.”

—Phoebe Carstens (they/them), New Ways Ministry, June 11, 2024