What the Justices Must Decide

• Colorado says every publicly funded preschool must provide equal enrollment access regardless of sexual orientation, gender identity, religion and other protected characteristics.
• Catholic preschool operators argue the state cannot condition access to a generally available public benefit on surrendering religious practices protected by the First Amendment.
• The ruling could clarify when government funding conditions cross the constitutional line from neutral regulation into an unlawful burden on religious exercise.

WASHINGTON — The U.S. Supreme Court is taking up a deceptively simple question Tuesday with potentially broad consequences for publicly funded education: When a state opens a government benefit to private institutions, how far can it go in requiring religious schools to follow conditions that conflict with their beliefs?

The case, St. Mary Catholic Parish v. Roy, No. 25-581, involves Colorado’s Universal Preschool Program, which provides publicly funded preschool through public, private and faith-based providers. State law requires participating schools to give eligible children an equal opportunity to enroll regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, housing status, income or disability.

The Archdiocese of Denver, St. Mary Catholic Parish, St. Bernadette Catholic Parish and parents challenging the program are not arguing that Colorado must abandon its nondiscrimination law altogether.

Their argument is constitutional.

They contend Colorado cannot make preschool funding broadly available, permit various enrollment preferences within the program, and then deny Catholic schools funding because those schools apply religious teachings concerning sex, gender and family life. Their Supreme Court brief argues that doing so burdens religious exercise and should trigger the Constitution’s demanding strict-scrutiny test.

Colorado sees the case differently. The state says the enrollment requirement contains no exemption from its equal-opportunity mandate—religious or secular—and therefore applies uniformly to every participating provider. The Tenth Circuit agreed, concluding that because state law gives administrators no authority to exempt providers from the nondiscrimination requirement, the provision remains generally applicable.

That distinction puts two major Supreme Court precedents directly into play.

Under Employment Division v. Smith, neutral laws that apply generally may survive a Free Exercise challenge even when they incidentally burden religious practices. But in later decisions, including Carson v. Makin, the Court held that government ordinarily cannot exclude otherwise eligible participants from a public benefit because of religious exercise.

The Supreme Court expressly agreed to examine those competing principles. One question asks what must be shown before a law loses its status as “generally applicable.” The second asks how far Carson limits government authority to exclude religious institutions from public benefits.

That is what makes this case larger than one Colorado preschool program.

If Colorado prevails, states may retain substantial authority to attach neutral nondiscrimination requirements to publicly financed educational programs, provided those rules genuinely apply across the board.

If the Catholic schools prevail, states could face a much harder constitutional burden when funding rules force religious providers to choose between participating in a generally available public program and following their religious practices.

The Supreme Court granted review on April 20 and scheduled argument for November 3. A decision is expected before the Court completes its current term, typically by late June.

Official case materials: Supreme Court docket for St. Mary Catholic Parish v. Roy | Tenth Circuit decision

About the Author

Samuel López is an investigative reporter and news correspondent for USA Herald who has covered legal, insurance and regulatory matters since joining the publication in 2022. His reporting draws on more than two decades of legal-sector experience, with particular attention to litigation, constitutional disputes and the practical consequences of court rulings beyond the courthouse.

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