A federal judge heard testimony this week in a trial that will decide whether the state of Colorado can exclude Catholic schools from participating in its universal preschool program.

The Archdiocese of Denver, along with two Catholic preschools, is taking legal action against the state, contending that the program is unconstitutional as it discriminates against Catholic schools by preventing them from participating.

Nick Reaves, an attorney with the religious liberty law firm Becket, which is representing the archdiocese, told CNA that “by excluding religious preschools from its universal preschool program, Colorado is shutting out hundreds of families, including low-income and minority families, who want a faith-based education for their children.”

The suit, which began on Tuesday, was filed in the U.S. District Court for the District of Colorado in August 2023. Colorado’s universal preschool program, created in 2022, offers eligible families at least 15 hours per week of free preschool for every participating child, according to the program website.

The lawsuit’s plaintiffs are St. Mary Catholic Parish in Littleton and St. Bernadette Catholic Parish in Lakewood, both in the Denver metro area, as well as the Archdiocese of Denver.

The archdiocese and schools maintain that the state’s rules requiring participating schools “to accept any applicant without regard to a student or family’s religion, sexual orientation, or gender identity” violate the schools’ First Amendment rights.

“Colorado did not have to create a universal preschool funding program, but in doing so it cannot implement that program in a way that excludes certain religious groups and providers based on their sincerely held religious beliefs,” the lawsuit said.

The lawsuit maintains that the program rules are unconstitutional and objects to the exclusion of Catholic schools but not the preschool programs of other private schools.

“Our preschool exists to help kids harness the skills they need to flourish and grow into individuals prepared to serve others in hope, joy, and love,” Tracy Seul, director of development and preschool at St. Mary Catholic School in Littleton, Colorado, said in an Aug. 16 statement.

She said the preschool is “called to offer this ministry to every parent who wants to provide their child with an authentic Catholic education.”

Colorado’s participation requirements, the lawsuit says, “would categorically exclude all Archdiocese of Denver Catholic preschools because of the Catholic Church’s sincere and long-held religious beliefs.”

Catholic preschools seek to ensure that teachers uphold their religious mission. This means that staff must sign archdiocese-approved employment contracts annually that affirm their willingness to uphold Catholic teaching on issues including life, marriage, and sexuality.

Families, too, must agree that they understand and accept the Catholic community’s view on matters like marriage, sexuality, and gender. Further, following the Archdiocese of Denver’s instruction, the Catholic schools must consider whether a prospective student’s family identifies as LGBTQ or is in a same-sex relationship and whether a student self-identifies as LGBTQ.

“Abiding by Catholic teaching on these issues would violate the department’s ban on sexual orientation and gender identity ‘discrimination,’ though plaintiffs do not believe adhering to these beliefs constitutes discrimination,” the lawsuit said.

The preschool programs at both St. Mary’s and St. Bernadette’s parishes serve many families with limited finances, Becket’s Wednesday statement said. About 85% of families who send their children to St. Bernadette’s preschool qualify for the free and reduced-price school meals program, while 20% of all families who send their kids to archdiocesan preschools qualify.

More than 25% of families at St. Mary’s preschool program receive scholarships or discounts on preschool costs.

The Denver Archdiocese has 36 preschools with more than 1,500 preschoolers each year. According to October 2022 state figures, there were 32,205 students in pre-kindergarten classes in Colorado public schools.

Reaves said that a ruling in the case is expected in the next few months, adding: “We look forward to ensuring that all preschool-aged children in Colorado have the right to enjoy an affordable, quality preschool education.”