A father in Colorado pays out of pocket for Catholic preschool while his taxes fund other children’s preschool educations. One of his children has spina bifida, and the family stays in Colorado because Medicaid covers her needs better than anywhere else. An extra $6,000 would go a long way toward helping care for her.

A mother who works at a lumber company, married to a house painter whose work slows every winter, has six children and a seventh on the way. She once assumed Catholic school was only “for rich people.”

Another mother started a florist business to help pay tuition. Three of her children attend a Catholic school in Denver, but she could not afford preschool there for her youngest, who now attends a Lutheran preschool in the state program.

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“I’m choosing just a faith,” she says, “and here I’m being punished for that.”

A fourth parent took a lower-paying job at her children’s parish school for a tuition discount, and she has watched families leave because of the cost of pre-K.

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I filed an amicus brief with the Supreme Court on behalf of these Catholic families in St. Mary Catholic Parish v. Roy, which the court will hear on Nov. 3. Dan and Lisa Sheley, parents who joined the Archdiocese of Denver and two parishes in challenging the state in court, tell a similar story. The Sheleys have seven children, five already at St. Mary’s, and have spent thousands of dollars out of pocket on a faith-based preschool education the state will not help fund.

Colorado’s “universal” preschool program was supposed to help families like them. It doesn’t, and the reason is a single clause. To participate, a school must promise “equal opportunity,” a provision that covers sexual orientation and gender identity, and Catholic schools cannot agree to it without abandoning church teaching on the nature of marriage, human sexuality and identity. Colorado never has to say “Catholic.” It only has to write a rule that Catholic schools cannot meet.

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America has seen that move before, under the Blaine amendments, and they are back.

In 1875, at a time of great anti-Catholic bigotry, Speaker of the House James G. Blaine proposed a constitutional amendment barring public money from “sectarian” schools. The real target was Catholic immigrants. The public schools of the day were Protestant, with daily instruction, prayers and hymns built around the King James Bible.

Catholic families that sought instruction for their children in their faith tradition built schools of their own. Blaine’s amendment passed the House overwhelmingly and fell just short in the Senate. The states took up the cause, and roughly three dozen wrote versions into their constitutions. None said “Catholic.” None needed to. As Justice Clarence Thomas observed in Mitchell v. Helms (2000), it was an open secret that “sectarian” was code for “Catholic.”

Colorado has built the modern version. Its program gives eligible 4-year-olds a benefit worth around $6,000 a year at the school their parents choose. The price of participation is the “equal opportunity” clause, which Catholic schools cannot pay. So they are out.

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The Supreme Court has spent recent years undoing the Blaine legacy. In Trinity Lutheran (2017), Espinoza (2020) and Carson (2022), it held that once a state offers a public benefit, it cannot disqualify schools for being religious or for practicing their faith. Colorado’s mandate does the same work in modern vocabulary. Many preschools are willing to accept the state’s terms. But those whose faith includes a view of marriage, sex and the human person the state rejects cannot.

And Colorado’s rules bend for everyone else. Providers may serve only children with disabilities, only low-income children, only children of color, only gender-nonconforming children or only the LGBTQ+ community, and officials can grant further exceptions case by case. But there is no flexibility for Catholic schools. The lawmakers who built the program expected faith-based preschools to be part of it.

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The cost of exclusion is measurable. Roughly 1,500 children across 30 schools have been shut out. Enrollment in Catholic preschools has dropped by about 20%. Two preschools have closed.

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The request before the Supreme Court is narrow. Colorado already makes room for providers whose missions call them to serve particular communities. It can make room for Catholic ones.

In Masterpiece Cakeshop (2018), 303 Creative (2023) and Chiles (2026), the Supreme Court rebuked Colorado for its intolerance. The justices should tell the state again that the guarantees of the Constitution don’t collapse under the pressure of ideology. A state that offers families support for private education must not close the doors to Catholic schools committed to being Catholic. The Blaine amendments were a stain on American law. They should not return under a new label.

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