Supreme Court Weighs Free Exercise and Anti-Discrimination Laws in High-Stakes Colorado Preschool Case

The legal intersection of religious liberty and state anti-discrimination mandates arrives at the steps of the nation’s highest court on Tuesday, as the U.S. Supreme Court hears oral arguments in St. Mary Catholic Parish v. Roy. The landmark case presents the justices with a profound constitutional question: whether a state can condition participation in a universal preschool funding program on a school’s agreement to comply with comprehensive anti-discrimination policies that conflict with traditional religious teachings on marriage, sex, and gender.

Over the past decade, the Supreme Court’s conservative majority has systematically broadened First Amendment protections for religious organizations. Legal scholars and civil rights advocates alike are closely watching St. Mary Catholic Parish v. Roy to determine whether the court will accelerate this jurisprudential shift, potentially establishing that religious convictions supersede state anti-discrimination laws, or whether it will draw a firm boundary allowing government entities to enforce inclusive public policies without facing insurmountable constitutional hurdles.

Main Facts and the Colorado Universal Preschool Program

At the heart of the litigation is a universal preschool education initiative launched by the state of Colorado in 2023. Designed to expand access to early childhood education, the statewide program provides state-funded tuition for four-year-olds attending any participating public school, secular private school, or faith-based institution.

To qualify for public funds under the program, participating schools must sign an administrative agreement pledging not to discriminate against children or their families based on a protected class. These categories encompass race, ethnicity, religion, sexual orientation, gender identity, disability, income level, and housing status.

St. Mary Catholic Parish in Littleton, Colorado, alongside another Catholic preschool operating under the Archdiocese of Denver, declined to execute the participation agreement. Church leadership argued that the non-discrimination clauses—specifically regarding sexual orientation and gender identity—directly contradict core Catholic doctrines concerning marriage, sex, and human dignity. Consequently, the preschools objected to requirements that would obligate them to admit children whose parents are in same-sex relationships or who identify as transgender.

By refusing to sign the agreement, the religious schools were deemed ineligible for the universal preschool funding stream. In response, the parishes filed a federal lawsuit, asserting that their exclusion from a widely available public benefit penalizes them for exercising their religious beliefs, thereby violating the Free Exercise Clause of the First Amendment.

Legal Chronology and Lower Court Rulings

The path to the Supreme Court involved rejections of the plaintiffs’ claims across multiple federal judicial tiers. Both the U.S. District Court for the District of Colorado and the Denver-based 10th U.S. Circuit Court of Appeals upheld the constitutionality of the Colorado preschool law.

In their decisions, the lower courts relied heavily on the foundational 1990 Supreme Court precedent Employment Division v. Smith. In Smith, the high court ruled that the Free Exercise Clause does not relieve individuals or institutions from the obligation to comply with a valid, neutral law of general applicability simply because the law prescribes conduct contrary to religious tenets. Writing for the majority in Smith, Justice Antonin Scalia established that neutral, generally applicable laws cannot be challenged under the Free Exercise Clause merely because they incidentally burden religious practices.

Applying this framework, the district court and the 10th Circuit concluded that Colorado’s non-discrimination condition is a neutral, generally applicable regulation intended to prevent discrimination across all participating educational providers. Furthermore, the lower courts found that the policy did not unconstitutionally target religious schools, noting that the program extends state funds to faith-based institutions on the exact same terms as public and secular private schools, provided they abide by the universal conduct rules.

The plaintiffs petitioned the Supreme Court for a writ of certiorari, which the justices granted on two specific questions: first, whether demonstrating a lack of general applicability under Employment Division v. Smith requires showing unfettered administrative discretion or categorical exemptions for identical secular conduct; and second, whether the high court’s subsequent ruling in Carson v. Makin displaces the Smith rule exclusively when the government explicitly targets and excludes religious entities.

The Evolution of Free Exercise Jurisprudence: From Smith to Fulton

To fully grasp the magnitude of St. Mary Catholic Parish v. Roy, legal analysts must examine how the Supreme Court has altered the landscape of religious liberty litigation over the last thirty years.

The most recent major test of the Smith doctrine occurred in the 2021 case Fulton v. City of Philadelphia. The city contracted with private social service agencies to manage foster care placements, requiring all partner agencies to sign contracts explicitly prohibiting discrimination based on race, sex, religion, and sexual orientation. Catholic Social Services (CSS), a long-standing partner in the program, informed the city it could not comply with the sexual orientation non-discrimination requirement due to its religious belief that marriage is strictly between a man and a woman.

When Philadelphia declined to renew its contract with CSS, the agency sued, alleging a violation of its First Amendment rights. While lower courts upheld the city’s policy under Employment Division v. Smith, a unanimous Supreme Court reversed the decision in favor of Catholic Social Services.

Chief Justice John Roberts, writing for the majority in Fulton, found that the city’s non-discrimination policy was not generally applicable because the contract contained a provision granting the city commissioner discretionary authority to grant exemptions. The court held that even though no exemptions had ever been granted, the mere existence of a mechanism for individualized exemptions stripped the policy of its general applicability, triggering strict scrutiny. Because the city failed to satisfy strict scrutiny, its refusal to work with CSS was deemed unconstitutional.

While Fulton was resolved on narrow administrative grounds, concurring opinions highlighted deep ideological divisions regarding the survival of Smith itself. Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, authored a blistering 77-page concurrence explicitly calling for the court to overrule Smith, arguing that its holding is historically indefensible and inconsistent with the text and original understanding of the First Amendment. Justice Amy Coney Barrett, joined by Justice Brett Kavanaugh, expressed deep skepticism toward Smith as well, though she maintained that the court did not need to formally overturn the 1990 precedent to decide the Philadelphia case.

The Funding Paradox: Free Exercise Versus the Establishment Clause

Parallel to the evolution of the Free Exercise Clause, the Supreme Court has undergone a dramatic reversal regarding government funding of religious institutions. For decades, the court closely monitored state aid to religious schools, frequently striking down programs under the Establishment Clause to maintain a strict separation of church and state.

However, in a string of recent decisions—including Trinity Lutheran v. Comer (2017), Espinoza v. Montana Department of Revenue (2020), and Carson v. Makin (2022)—the conservative majority established a new constitutional principle: when the government makes public funds available to private secular schools, excluding religious schools solely because of their religious status or character violates the Free Exercise Clause.

In Carson v. Makin, the court struck down a Maine tuition assistance program that excluded sectarian schools from a rural education subsidy, ruling that the state could not penalize families or schools for exercising religious options.

The central tension in St. Mary Catholic Parish v. Roy lies in distinguishing Colorado’s preschool framework from Maine’s tuition program. In Maine, the state explicitly barred religious schools from participating. In Colorado, the universal preschool program explicitly welcomes faith-based schools, provided they adhere to the same non-discrimination standards applied to all participating institutions.

Petitioner St. Mary’s Catholic Parish argues that despite the formal neutrality of the Colorado law, the practical effect is the denial of public benefits based on the school’s religious exercise—namely, its adherence to traditional teachings on sexuality and gender. Conversely, state defenders maintain that conditioning neutral educational funding on compliance with basic civil rights and anti-discrimination standards is a legitimate exercise of state authority that does not constitute impermissible religious targeting.

Broader Impact and Implications

The outcome of St. Mary Catholic Parish v. Roy carries significant implications for the future of civil rights enforcement, public education funding, and the boundaries of religious accommodation in the United States.

If the Supreme Court rules in favor of the Catholic preschools, it could substantially weaken the ability of state and local governments to enforce broad non-discrimination protections in publicly funded programs whenever those protections conflict with religious tenets. Such a ruling would likely embolden religious organizations to seek broad exemptions from anti-discrimination laws governing employment, public accommodations, social services, and education.

Conversely, a ruling upholding the Colorado law would signal that while the court fiercely protects religious institutions from explicit discrimination and exclusion, the government retains the constitutional authority to enforce neutral, generally applicable civil rights standards as a prerequisite for receiving taxpayer-funded public benefits.

As the justices hear oral arguments, legal scholars note that the case serves as a critical stress test for the Roberts Court’s ongoing project of redefining the hierarchy between religious freedom and governmental anti-discrimination mandates. A decision in the case is expected by the conclusion of the court’s current term in June.