In St. Mary Catholic Parish in Littleton v. Roy, (10th Cir., Sept. 30, 2025), the U.S. 10th Circuit Court of Appeals held that the nondiscrimination requirements of Colorado's Universal Preschool Program do not violate the free exercise or expressive association rights of Catholic schools that are excluded from the program because they insist on considering the sexual orientation and gender identity of a student and their parents in making decisions on who will be admitted. The court said in part:
Colorado is not attempting to prohibit funds from being used for religious purposes. ... [P]reschools funded through UPK may use those funds to educate students on matters of faith. The restrictions imposed by the nondiscrimination requirement universally cover enrollment policies and conduct, but they are not a targeted burden on religious use. The Parish Preschools allege, of course, that this universal restriction nonetheless infringes upon their ability to exercise their religious beliefs. But when a particular religious practice is alleged to be infringed incidentally, rather than religious status or use being specifically targeted, the Supreme Court requires that the law at issue be neutral and generally applicable....
... [B]ecause state law gives no room to the Department to make exceptions, it stays generally applicable, and thus does not implicate the Free Exercise Clause....
Meanwhile, the Department has made every effort to encourage faith-based preschools to participate in UPK short of granting them an unlawful exemption from the nondiscrimination requirement. As a result, forty faith-based preschools are currently part of UPK. The program is a model example of maintaining neutral and generally applicable nondiscrimination laws while nonetheless trying to accommodate the exercise of religious beliefs....
Even if a group is engaged in expressive association, its expressive association rights are not infringed upon by the mandated inclusion of a person unless “the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.”...
This is a case about preschoolers. No one would reasonably mistake the views of preschool students for those of their school. And while we must “give deference to an association’s view of what would impair its expression[,]” that does not mean that we must buy that “mere acceptance of a member from a particular group” is enough.... Teachers and staff are the ones responsible for disseminating a preschool’s message and developing the curriculum, not the preschool children they teach. ...
