November 4, 2026
WASHINGTON (BP) — The U.S. Supreme Court heard oral arguments Tuesday, Nov. 3, in a case regarding a Colorado law that critics claim constitutes religious discrimination. A group of Catholic preschools is fighting the law because it does not allow an exemption for them to participate in the state’s preschool funding program.
Colorado’s universal preschool program was created in 2022 and offers funding for up to 15 hours of weekly preschool education at any licensed public or private school, provided it agrees to an “equal opportunity mandate,” which requires the school to serve students regardless of “sexual orientation or gender identity,” among other things.
Catholic preschools under the Archdiocese of Denver, including St. Mary Catholic Parish, filed a federal lawsuit alleging discrimination in August 2023.
St. Mary Catholic Parish, along with more than 30 other Catholic preschools in Denver, requires employees and admitted families to affirm a biblical ethic with regard to gender and sexuality. St. Mary’s application to the program and request for a religious exemption were denied by the state. This was despite other schools in the state receiving exceptions for other secular reasons such as “enrollment preferences.”
St. Mary Catholic Parish was joined in the lawsuit by St. Bernadette Catholic Parish, the Archdiocese of Denver, and two parents of preschool-age children. The plaintiffs allege their exclusion from the universal preschool funding program violates the Free Exercise Clause of the First Amendment of the U.S. Constitution. The funding Colorado’s UPK offers, which it denied the petitioners, can total more than $6,000 per school year.
In January 2024, a federal district court sided with Colorado, calling its nondiscrimination measure outlined in the program neutral and not in violation of the First Amendment. That decision was upheld last year by the U.S. Court of Appeals for the 10th Circuit.
The Supreme Court agreed to take up the case, known as St. Mary Catholic Parish v. Roy, this April. Lisa Roy, executive director of the Colorado Department of Early Childhood, is the defendant in the case. St. Mary is represented in the suit by The Becket Fund for Religious Liberty.
The Southern Baptist Convention’s Ethics & Religious Liberty Commission joined two amicus briefs supporting the petitioners along with other religious organizations such as the National Association of Evangelicals, The Church of Jesus Christ of Latter-Day Saints and The Coalition for Jewish Values.
Zack Pruitt, ERLC vice president of public policy and general counsel, said Colorado’s law continues a trend of the state limiting free religious expression.
“Once again, Colorado finds itself before the Supreme Court for insisting that believers must violate their deeply held religious convictions regarding biblical sexual ethics to participate fully in Colorado public life,” Pruitt said.
“Colorado’s nondiscrimination mandate puts religious preschools in jeopardy. They must either violate their religious convictions on biblical sexual ethics or lose out on a public benefit that could result in lower enrollments or even closure of their school.
“The ERLC is proud to be on a brief supporting St. Mary Catholic Parish in this case. Please join us in praying the Supreme Court reaffirms the First Amendment protections against religious discrimination and the rights of religious institutions to remain faithful to their deeply held beliefs.”
The questions in the case concern two previous Supreme Court cases: Employment Division v. Smith and Carson v. Makin.
Lawyers for the petitioners argue Carson should be applied in this case instead of Smith (which the lower courts used), which would trigger strict scrutiny, the highest and most stringent level of judicial review.
In Carson, the High Court ruled that if a state chooses to fund private education, it cannot explicitly exclude religious schools from that benefit purely because of their particular religious exercise.
The question is whether Carson applies only if the law explicitly bans religious groups by name within its language or if the effect of the law can inherently exclude religious groups despite the language of the law appearing neutral.
Petitioners said in court documents that if Carson is applied properly, the case is “an uncomplicated one.”
The plaintiffs further argue that even if Carson is not used, as the lower courts relied on Smith, their case still stands. Smith declares the government does not violate the First Amendment Free Exercise Clause if it enforces a law that is “neutral and generally applicable.”
Plaintiffs argue Colorado’s law is not generally applicable because the state granted categorical exemptions for some secular reasons, like prioritizing low-income or disabled students, but not for religious ones.
“Colorado’s inconsistent and contradictory arguments further confirmed the state’s actions are anything but generally applicable,” said Nicholas Reaves, an attorney representing St. Mary Catholic Parish, in his opening statement.
“Colorado has flexibly interpreted the mandate to accommodate important secular interests, but it’s called the same law a hard limit when petitioners sought a religious accommodation.”
Reaves further explained that if Catholic schools were funded through the state’s programs, it would have no effect on the thousands of other preschools already participating in it.
Justices Jackson and Sotomayor questioned Reaves about whether these schools were really discriminated against or were just seeking special treatment, but Reaves clarified the program’s “equal opportunity mandate” effectively excludes Catholic schools. Jackson and Sotomayor previously dissented in Carson.
Justice Gorsuch stated that the Constitution “deals in substance, not in shadows,” implying that states may be trying to “get around” the ruling in Carson by reframing their religious discrimination as nonexplicit.
The Department of Justice also joined the case in support of the petitioners, and Deputy Solicitor General Sarah Harris reiterated there are “two paths to reversal” in the case through either Smith or Carson.
Justice Kavanaugh addressed the special treatment narrative with a hypothetical about a Jewish worker getting Saturdays off, asking Harris if that would constitute special treatment or free exercise of religion. Harris said the latter.
Colorado’s attorney Helen Norton argued to the justices that the case is not one of religious discrimination, as UPK “does not regulate schools’ enrollment criteria so long as they don’t violate the equal opportunity requirements.”
Justice Barrett inquired about the difference between the government explicitly excluding religious schools and knowing that a policy will effectively exclude religious schools, to which Norton argued intent is key and Colorado had no intent to discriminate with its program.
Justice Alito pointed to Colorado’s recent history of several High Court cases that dealt with religious discrimination, including:
In all these cases, the High Court ruled in favor of the Christian petitioners.
Pruitt, who posted live updates about the case on X, said the arguments indicate the Supreme Court seems poised to again rule on the side of religious liberty.
A decision in the case is expected by summer 2027.
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This article appeared in Baptist Press.
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