Two Catholic preschools in Colorado just got a hearing before the highest court in the land, and the question at the center of the case cuts straight to the bone: Can a state offer free preschool to thousands of families while locking out religious schools that refuse to abandon their own teachings?
The Supreme Court announced Monday it will take up St. Mary Catholic Parish v. Roy, a First Amendment challenge brought by the Archdiocese of Denver and two parish-run preschools that say Colorado kicked them out of the state's universal preschool program because they follow Catholic doctrine on sex, gender, and marriage. The case will be argued in the fall term, as Courthouse News reported.
The stakes go well beyond Denver. If the justices side with the preschools, the ruling could reshape how every state in the country handles public funding for religious institutions that maintain faith-based admissions standards. If Colorado prevails, states will have a green light to condition taxpayer benefits on compliance with nondiscrimination rules that many religious organizations say force them to choose between their faith and public dollars.
Colorado launched its universal preschool program to give families across the state access to free early education. Roughly 2,000 preschools participate, including many private providers and even some religious ones. But the program bars participating schools from rejecting children based on the sexual orientation or gender identity of the student or their parents, as Breitbart detailed.
The Archdiocese of Denver says that requirement is the problem. The two Catholic preschools at issue maintain admissions policies rooted in church teaching. They admit families who support Catholic beliefs, including teachings on marriage as between a man and a woman and on biological sex. Colorado officials determined those policies conflict with the state's nondiscrimination rules and excluded the schools from the program.
The archdiocese and its legal team at the Becket Fund for Religious Liberty see this as a straightforward case of religious discrimination. Nick Reaves, a senior counsel at Becket, framed it bluntly:
"There are 2,000 preschools in the program, a lot of private preschools, even some other religious preschools. But what they've said is, 'We don't like your beliefs, Archdiocese of Denver, so your schools are out.'"
Colorado's position is simpler on its face: every school in the program must follow the same nondiscrimination rules, and no religious exemption exists for providers who receive state funding.
The Catholic preschools lost at both the federal district court level and the Tenth Circuit Court of Appeals. Both courts upheld Colorado's nondiscrimination requirement as a neutral, generally applicable law, the standard set by the Supreme Court's 1990 decision in Employment Division v. Smith. Under Smith, a law that applies to everyone and does not single out religion for special burdens does not violate the Free Exercise Clause, even if it incidentally burdens religious practice.
The preschools' lawyers argue that Smith has become, in their words, "highly malleable and unpredictable." Different federal circuits have applied it in conflicting ways, they say, leaving religious organizations in some parts of the country with far less protection than in others. They are urging the Supreme Court to revisit or overrule Smith entirely, as Just the News reported.
The case lawyers for the Catholic schools wrote that Colorado treats their religious admissions practices as "discrimination" simply because those practices reflect Catholic teaching on sex and gender.
"Because Colorado says these preschools' religious practice of admitting only families who support Catholic teachings, including on sex and gender, is 'discrimination.'"
The Biden administration had stayed out of the case, but the Trump administration took a different posture. Solicitor General D. John Sauer filed a brief urging the justices to grant review. His argument went beyond the facts of this case and targeted the Smith framework itself.
"This Court should not allow widely diverging views about what makes a law neutral and generally applicable under Smith to stymie religious exercise in major portions of the country."
That language signals the administration sees this case as a vehicle not just to protect two Denver preschools but to potentially rewrite the legal standard governing religious freedom claims nationwide. The Court has been no stranger to high-profile political disputes this term, and the addition of a major Free Exercise case only raises the stakes of an already packed docket.
For Colorado, this case arrives at an uncomfortable moment. The state has become something of a repeat visitor to the Supreme Court on First Amendment issues, and the results have not been kind.
In 2018, the Court ruled against Colorado in Masterpiece Cakeshop v. Colorado Civil Rights Commission, finding that the state showed impermissible hostility toward a baker's religious beliefs when it punished him for declining to create a custom wedding cake for a same-sex couple. In 2023, the Court ruled against Colorado again in 303 Creative v. Elenis, holding that the state could not compel a web designer to create content celebrating same-sex marriages in violation of her beliefs.
Most recently, Colorado lost 8-1 in Chiles v. Salazar, a case the Washington Examiner highlighted as part of this pattern. That lopsided margin suggests the justices across ideological lines have grown skeptical of how Colorado balances nondiscrimination enforcement against constitutional rights.
The state's track record matters because it shapes how the justices may view Colorado's credibility when it argues its preschool rules are truly neutral. A state that has been found hostile to religious exercise three times in recent memory faces a steep climb to persuade a majority it got it right this time. Colorado has also clashed with federal authority on other fronts, reinforcing a broader perception that the state's legal posture often collides with constitutional limits.
Scott Elmer of the Archdiocese of Denver put the case in practical terms that resonate with parents:
"All we ask is for the ability to offer families who choose a Catholic education the same access to free preschool services that's available at thousands of other preschools across Colorado."
That framing matters. The universal preschool program exists to expand access for all Colorado families. The archdiocese's argument is that families who want a Catholic preschool are being punished for that choice, not because the schools fail to educate children, but because the schools hold beliefs the state finds objectionable.
Becket's Reaves reinforced that point in a separate statement carried by the Associated Press:
"The Supreme Court has repeatedly held that states cannot exclude families from government benefits because of their faith. We're confident the Court will say the same thing here and put a stop to Colorado's no-Catholics-need-apply rules."
The preschools' legal team is leaning on a line of Supreme Court decisions that have steadily expanded protections for religious institutions seeking access to public funding. In Trinity Lutheran Church v. Comer (2017), the Court held that Missouri could not exclude a church from a playground-resurfacing grant simply because it was a church. In Espinoza v. Montana Department of Revenue (2020), the Court struck down a state rule barring scholarship funds from going to religious schools. And in Carson v. Makin (2022), the Court ruled that Maine could not exclude religious schools from a tuition-assistance program available to private secular schools, as Newsmax noted.
Each of those cases pushed the same principle: when a state creates a public benefit and opens it to private participants, it cannot exclude religious ones solely because of their religious character. Colorado's counter-argument is that this case is different because the exclusion is based on conduct, specifically, the schools' refusal to comply with nondiscrimination requirements, not on religious identity alone.
That distinction between religious status and religious conduct is the legal fault line the Supreme Court will have to navigate. The preschools say the distinction is a fiction. Their admissions policies flow directly from Catholic doctrine, they argue, so penalizing the policies is penalizing the faith.
The biggest wildcard in the case is whether the Court uses it to revisit Employment Division v. Smith itself. Several justices have expressed dissatisfaction with Smith in recent years. Justice Samuel Alito has called for its overruling. Justice Neil Gorsuch has questioned its reasoning. Justice Clarence Thomas has signaled openness to reconsidering it. With the current composition of the Court, and with ongoing speculation about the Court's future direction, the case could become a vehicle for a much larger doctrinal shift.
If the Court overrules or narrows Smith, the result would be a higher standard of scrutiny for any government action that burdens religious exercise, even through neutral, generally applicable laws. That would give religious organizations far greater leverage to challenge state regulations across education, employment, healthcare, and social services.
Investigators and legal observers will need to determine whether the Court takes the narrow path, ruling on Colorado's specific program, or the broad one, rewriting the framework that governs religious liberty claims in every federal court in the country.
Oral arguments are expected in the fall. By the time the justices hear the case, it will have been years since the Archdiocese of Denver first challenged its exclusion. The families who wanted Catholic preschool through the state program have been waiting. The institutional pressures on the Court to deliver a clear, workable standard are real, because lower courts are split on how to apply the existing one.
Colorado built a program to give every family access to free preschool. Then it told Catholic families the door was closed unless their parish abandoned its own teachings. The Supreme Court will now decide whether the Constitution allows that bargain, or whether it was never Colorado's to impose.
