Colorado ban on religious schools in pre-K program struck down, as SCOTUS precedent slowly enforced

Nearly eight years after the Supreme Court put its foot down against states discriminating against religious groups in eligibility for any "otherwise neutral and secular aid program," federal courts keep reiterating the message to states, whose taxpayers shoulder hefty legal bills.

Colorado must stop blocking Darren Patterson Christian Academy from its Universal Preschool Program, known as UPK, on the basis that it requires employees to share its faith and "abide by certain policies determined by biological sex rather than gender identity," U.S. District Judge Daniel Domenico wrote in granting summary judgment to the academy Monday, obviating a trial.

The President Trump appointed judge is also known for blocking the state's ban on so-called abortion reversal, or prescribing supplemental progesterone to counteract the abortifacient mifepristone, a protocol that makes "biological sense" according to a reproductive researcher.

UPK is comparable to the "town tuitioning" programs in rural New England, which pay for students to attend the school of their parents' choice when their area has no public schools, in their structure, eligibility restrictions and litigation history.

The Supreme Court knocked down Maine's ban on tuition going to "sectarian" schools in 2022, with Justice Samuel Alito saying it favored "watered down" religious beliefs.

Lower courts nevertheless sided with Vermont in its expulsion of a Christian school from athletic competition for refusing to play girls' teams with males who identify as girls, and with Maine in its "poison pill" law to strip protections from religious schools that seek town tuitioning while the SCOTUS case was pending, which prompted appeals from the schools.

Colorado has a history of Whac-A-Mole with the Supreme Court for its subjugation of religious beliefs to protections based on sexual orientation and gender identity, nearly bankrupting a family bakery twice and threatening a web design business.

The high court in 2018 struck down the Colorado Civil Rights Commission's requirement that Jack Phillips and his Masterpiece Cakeshop make custom wedding cakes for same-sex ceremonies or abandon the business, finding its adjudication had shown religious hostility.

After SCOTUS accepted Phillips' appeal, a lawyer filed a CCRC complaint and sued him for refusing to design a custom gender-transition cake. That case continued in state courts as SCOTUS banned Colorado from forcing Christian graphic designer Lorie Smith and her 303 Creative to make same-sex wedding websites.

Phillips' gender case reached the Colorado Supreme Court, which last fall threw it out on a technicality, at least temporarily ending a dozen years of continuous litigation against him.

Colorado voters created UPK in 2020 via referendum and the Legislature created the Department of Early Childhood to oversee it, according to Judge Domenico.

The Christian academy sued on the eve of the law taking effect in 2023, accusing the state of forcing religious preschools like its "Busy Bees" to abandon "their religious character, beliefs, and exercise" as a condition of participation.

It cited UPK antidiscrimination policies on religion, sexual orientation and gender identity that would require the school to hire non-Christians and change its rules "that relate to restroom usage, pronouns, dress codes, and student housing during school expeditions and field trips."

The state denied its request for religious exemptions after approving the academy for UPK and matching it with 17 children, meaning "the school will lose valuable tuition reimbursement from the state and inevitably some students and families too," the suit says.

"The Constitution is clear: religious schools can hire those who share their faith, and the government may not deny participation in a public program simply due to a school’s internal religious exercise," the academy wrote, citing SCOTUS in 2017's Trinity Lutheran.

Colorado didn't argue the merits in its defense, insisting the academy didn't have legal standing to sue, a strategy that backfired with Domenico.

He issued a preliminary injunction in 2023, days after he blocked Colorado's ban on abortion reversal. 

While "much of" Colorado's pleadings "suggest that they might withhold enforcement of these provisions until an aggrieved party files a complaint," the state never gave a "clear answer" on whether it views the academy's policies as violating UPK's rules.

The 40-page injunction, more than twice as long as Domenico's summary judgment ruling this week, elaborated at length about why Colorado's favorable treatment of the academy under other nondiscrimination rules is irrelevant to its feared "credible threat of enforcement" of a new law with more targeted language and fewer guaranteed exemptions.

The enforcement mechanism "appears to closely mirror" that in the complaint against graphic artist Smith and her 303 Creative, meaning a private third party's complaint to the department "could – or perhaps would" trigger at the least a "burdensome" investigation, he wrote.

While the state scrapped a nondiscrimination provision on gender identity, sexuality "or any other identity" after the injunction, it left in place "quality standards" that prohibit the same discrimination, as well as an exemption process to ensure education is delivered "through a combination of school- and community-based preschool providers."

That means UPK is not a "neutral law of general applicability," as the state belatedly claimed, and it is therefore subject to the most unforgiving standard of judicial review, strict scrutiny, Domenico wrote Monday.

It fails that standard because of disparate treatment even between religious institutions, with Colorado granting or willing to grant exemptions to others but not the academy, according to the judge, using reasoning that echoes Alito's comments on Maine preferencing schools with "watered down" religious beliefs over those with claims of truth exclusivity.

The law grants "categorical exemptions" to preschools operated by houses of worship that reserve seats for members of their "congregation," meaning they "may be able to effectively exempt themselves" from the "same sorts of rules that Darren Patterson imposes on its staff and students," Domenico wrote.

The 10th U.S. Circuit Court of Appeals, whose rulings are binding on his court, long ago struck down Colorado's decision to "exclude pervasively sectarian institutions" from state financial aid, in that case Colorado Christian University, the judge said. 

That rules out preferences for "formal religious organizations" such as the law's "congregations" – which the state admits don't even have to be religious – "over less traditional religious endeavors" such as the academy, Domenico wrote.

The exemption system also fails general applicability due to its "broad grant of discretion" and the fact that "the state recognizes conditions could exist in which it would exempt a preschool from the quality standards" but not the academy's religious convictions, he said.

"I do not doubt the harm that discrimination may cause to the precocious preschoolers who understand the concept, or that religious parents with gay or transgender children may suffer" if the academy excludes them, according to the judge. (The academy has argued it has not and would not exclude such children.)

But Colorado hasn't shown how its "system of exemptions" squares with its “contention that its non-discrimination policies can brook no departures," Domenico wrote, quoting the 2021 SCOTUS ruling against Philadelphia for halting foster-care referrals to Catholic Social Services based on its refusal to certify same-sex couples.

"Defendants have offered no convincing explanation" for why its interests are served by granting some exemptions but not others, "and this subverts its contention that its stated goal is constitutionally compelling and that its policies are narrowly tailored to achieve it," he said.