A federal judge on Tuesday concluded Colorado’s universal pre-kindergarten program impermissibly infringes on the rights of two Catholic parishes with its treatment of students’ religious affiliation, while at the same time rejecting large swaths of their challenge to a related LGBTQ non-discrimination requirement.

Two Catholic institutions, St. Mary Catholic Parish in Littleton and St. Bernadette Catholic Parish in Lakewood, filed suit against the state, alleging their preschools cannot participate in the publicly funded program because the church’s religious views on sexual orientation and gender identity run afoul of the requirements. Two parishioners of St. Mary with a preschool-age child are also parties to the litigation.

U.S. District Court Senior Judge John L. Kane held a trial in January, hearing from witnesses who helped develop the program, experts in psychology and parenting, and employees of the Catholic church. Ultimately, Kane rejected the parishes’ core claim that Colorado had violated their constitutional rights by requiring providers to give students an equal opportunity to enroll regardless of sexual orientation.

“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,” he wrote on June 4. “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.”

Kane, a Jimmy Carter appointee, reached a different conclusion than one of his colleagues who also recently evaluated a challenge to the pre-K program’s non-discrimination requirement. In October, U.S. District Court Judge Daniel D. Domenico, a Donald Trump appointee, granted an injunction to a Chaffee County Christian school that brought similar claims.

Unlike Kane, Domenico waved off Colorado’s argument that it has a compelling interest in eliminating discrimination in educational programs.

“Even assuming that this is true, such an interest is not ‘of the highest order’ such that the anti-discrimination rules can survive,” Domenico wrote.

Although Kane referenced Domenico’s conclusions in his own decision, he cautioned the two cases were not identical.

Approximately 40,000 children enrolled in the state’s pre-K program in its first year. The expanded access came after Colorado voters approved funding in 2020 for a “mixed-delivery” system of private and public providers, a step toward one of Gov. Jared Polis’ key campaign promises. Included in the program are 40 faith-based preschool operators that enroll more than 900 children.

The plaintiff preschools, however, abstained from signing up out of concern that their faith-based views on personal pronouns, bathroom usage and same-sex marriage — all related to LGBTQ status — disqualify them from the state-funded program as long as the non-discrimination requirement is in effect.

The plaintiffs also were worried the state would enforce the non-discrimination requirement against the schools’ hiring practices, which the state disavowed. Kane accepted the state’s promise as resolving the parishes’ employment concerns.

As for the LGBTQ non-discrimination requirement more broadly, Kane concluded it did not target religious beliefs, applied across the board to all providers, and met even the highest degree of scrutiny used to assess alleged constitutional violations.

“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,” Kane wrote. “The testimony at trial established the positive impact preschool attendance, and in particular quality preschool services, can have on students and their families.”

Kane did, however, determine the related requirement that providers not discriminate on the basis of religion violated the plaintiffs’ rights. The state permits faith-based providers to give a preference to members of their congregation — with Catholic or Lutheran schools reserving seats for Catholics or Lutherans, respectively, for instance.

The effect, he noted, was to allow religious providers to discriminate in practice, while being bound by a non-discrimination requirement on paper.

“Defendants have provided no compelling interest for their course of conduct,” Kane concluded.

He awarded the plaintiffs $1 in damages and ordered the Colorado Department of Early Childhood to refrain from enforcing the religious affiliation component of the non-discrimination requirement.

“Because of the court’s ruling, Colorado can no longer punish Catholic schools for caring about their students’ faith,” said Nick Reaves, an attorney for the plaintiffs. “Catholic schools must be free to ensure that their students and families are open to and supportive of the Catholic Church’s religious teachings. Religious schools and families should never be excluded by the state for their beliefs.”

Kane added he did not know whether the parishes would want to enroll in the pre-K program given the narrowness of his ruling, but “the injunction remedies the specific constitutional violation found.”

The case is St. Mary Catholic Parish et al. v. Roy et al.