The Supreme Court on Tuesday appeared ready to hold that the exclusion of Catholic preschools in Colorado from the state’s universal preschool program violates the First Amendment. After just over two hours of oral argument in St. Mary Catholic Parish v. Roy, a majority seemed to agree with the challengers that Colorado’s refusal to provide them with an exemption from rules that would require the preschools to admit all students – including LGBTQ children and children with LGBTQ parents – should be subject to a more stringent constitutional test than that applied by the lower court. The court could decide to apply that standard itself or send the case back to the lower courts for them to do so.
Colorado launched the universal preschool program, which provides families in the state with up to 15 hours of free preschool per week at participating schools, in 2023. To participate in the program, preschools must meet a variety of state standards and sign a nondiscrimination agreement, in which they consent to “provide eligible children an equal opportunity to enroll and receive preschool services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability.” The preschools cannot decline to serve LGBTQ families, because Colorado believes such refusals would violate the nondiscrimination agreement.
The plaintiffs – the Archdiocese of Denver, two Catholic parishes with preschools (one of which has since closed), and two parents of preschool-aged children – went to federal court to challenge the state’s policy. They contended that requiring Catholic preschools to agree to the nondiscrimination agreement to participate in the universal preschool program constitutes unlawful religious discrimination and that the First Amendment requires Colorado to carve out a religious exemption that allows them to take part in the program.
After both the district court and the U.S. Court of Appeals for the 10th Circuit rejected the challengers’ claim, they came to the Supreme Court last year, asking the justices to take up the case – which the court agreed in April 2026 to do.
Representing the challengers, Nicholas Reaves told the justices that the schools in the Archdiocese of Denver “exist to pass on the faith to the next generation.” “[T]his is not a zero-sum game,” he said, because “letting Catholic schools” participate in the universal preschool program “will create more seats for everyone.”
Representing the state, Colorado Deputy Solicitor General Helen Norton countered that “Colorado welcomes religious preschools to” the program and allows them to teach their religious beliefs. It simply asks them, she emphasized, to comply with the same rules as everyone else.
One of the major points of contention at Tuesday’s argument was the significance of the Supreme Court’s 2022 decision in Carson v. Makin, in which the court struck down a Maine law that allowed public funding to be used for private schools, but not for schools that provide religious instruction. The case was the third in a trilogy of decisions on the availability of public funding for religious institutions. In Carson, the majority applied strict scrutiny – the toughest constitutional test – after it concluded that the Maine law barred some private schools from receiving public funds “solely because they are religious.”
In response to a question from Justice Clarence Thomas about whether a ruling for the challengers would require the court to extend its ruling in Carson, Reaves responded that it would not. In Carson, he insisted, the court’s “focus … was to look at … what is happening to the religious believer?” The court in Carson, he said, “didn’t focus on the text of the law in Maine. It focused on whether schools are being excluded on account of their religious exercise.”
Chief Justice John Roberts pressed Reaves on that point, observing that the law at issue in Carson specifically discriminated against religious schools – which, Roberts suggested, is not the case with the Colorado program.
Reaves pushed back. He noted that the laws in other cases involving public benefits had been neutral, rather than discriminating against religious people or organizations – for example, the court’s 1963 decision in Sherbert v. Verner, reversing a ruling by the South Carolina Supreme Court that had rejected a constitutional challenge to the denial of employment benefits from a Seventh-day Adventist whose religion barred her from working on Saturday.
Roberts later questioned Norton on a related point, asking her to differentiate the Colorado program from the law at issue in Carson and telling her that the effect of the Maine law was “pretty much the same as the effect of the law here.” He also told Norton that the state was trying to “bury Sherbert” even though “nothing in our precedent has backed away from” it.
Two of the court’s Democratic appointees, however, echoed Roberts’ initial skepticism that Carson dictated the outcome of the challengers’ case. Justice Elena Kagan told Reaves that the trilogy of cases culminating in Carson involved laws that had excluded religious institutions and schools because of their religion. “t was a nondiscrimination principle,” she emphasized, but “you’re asking us to” issue a decision that would go “far beyond” its earlier cases. In particular, she suggested, the challengers were seeking a ruling that religious people “need a special accommodation” because of their faith.
Reaves responded that an interpretation of the court’s decision in Carson that focused on whether the law at issue expressly discriminated against religion would be “very easy to circumvent.”
Kagan responded that this isn’t “a good case to raise the kind of specter of circumvention.” “[T]his is a case,” she continued, “of a state trying to enforce its own nondiscrimination principles.”
Justice Ketanji Brown Jackson appeared to agree. She characterized Carson as a case that prohibited governments from treating religious schools worse than it treated secular schools. That doctrine, she posited, was “pretty narrow” and made “perfect sense.” But, she told Reaves, “your schools want to discriminate by exclusion” when no other school participating in the universal preschool program does so.
Some of the court’s Republican appointees were more persuaded by the challengers’ argument – also advanced by Sarah Harris, the principal deputy solicitor general who argued on behalf of the Trump administration in support of the challengers – that Carson should apply even if the Colorado law does not specifically target religion.
Justice Neil Gorsuch, for example, asked “what would be left” of cases like Sherbert “if everything turned on express discrimination” against religion, while Justice Samuel Alito appeared dubious that the legislators who enacted the Colorado universal preschool law “would not understand what the effect of” the law’s requirements “would be.”
Similarly, Justice Amy Coney Barrett asked Norton why, if Colorado cannot expressly exclude religious schools from its program, it can “impose a condition” – the nondiscrimination requirement – that it knows “schools will be unable to agree to?” Barrett pointed to a New York Times op-ed written in the wake of Carson by law professor Aaron Tang, who she stated suggested that states counteract some of the effects of Carson by enacting nondiscrimination requirements.
Norton resisted any effort to link Colorado’s nondiscrimination requirement to an intent to target religious schools, stressing that there was no evidence of the legislature’s motives and (in response to a question from Jackson) that the requirement predated the inclusion of religious schools in the program.
The justices and advocates also debated, although less extensively than the significance of Carson, whether Colorado’s conditions were neutral and generally applied to every preschool, regardless of religion – the kind of government actions, the Supreme Court held in 1990 in Employment Division v. Smith, that are subject to a less stringent constitutional test, known as rational-basis review.
Reaves told the justices that the Colorado nondiscrimination requirement was not the kind of “across-the-board” prohibition that the court envisioned in Smith because the Colorado law contains a series of preferences to facilitate the matching of families to preschools, including a “catch-all” preference that allows preschools to request (and the state to grant) a preference not listed in the regulation. Moreover, he added, the law also creates exceptions to accommodate children with disabilities and children from low-income families.
For her part, Norton characterized the preferences as very different from the kind of exclusion that the challengers seek. Even if a school receives a preference, she stressed, it is still subject to the nondiscrimination requirement.
Justice Brett Kavanaugh appeared to approach the case from what he regarded as a practical angle, asking Norton why the state wouldn’t “seek the win/win?” With over 2,000 preschools participating in the Colorado program, he said, there should be “plenty of opportunities to respect the rights of the religious believers” and, at the same time, “the ability of LGBT parents” to find a school that is a good fit for their families. “Why,” he asked, “has this been provoked?”
Justice Sonia Sotomayor took a different tack, suggesting that a ruling for the challengers could have broader implications. A Catholic preschool, she told Reaves, could reject a child “merely” because his or her parents are LGBTQ. Would this, she queried, also allow a religious preschool to turn down Black children?
Reaves said that it would not. He pointed to a 1983 case in which the Supreme Court, applying strict scrutiny, upheld the Internal Revenue Service’s decision to revoke the tax-exempt status of a private university and private school with racially discriminatory admissions policies. The government in that case, he emphasized, indicated that its interest in prohibiting such policies was not merely “compelling” (the first factor under strict scrutiny) but “overriding.”
He told the justices that strict scrutiny should similarly apply to this case. “And then the government can come forward and say we have a really good reason for” excluding Catholic preschools from the program. But, he concluded, “we just don’t think they’ve done that in this case.”
By the end of the argument, Sotomayor seemed to leave little doubt about where she stood. “No matter what line of cases we follow,” she said, “there will be tremendous problems and a great cost to someone.”
A decision is expected sometime next year.
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[ H/T SCOTUSblog ]
