Colorado's Catholic preschool case is at the Supreme Court: what is at stake

The Supreme Court heard argument Tuesday morning, November 3, in St. Mary Catholic Parish v. Roy, a case about whether Colorado can bar Catholic preschools from its state-funded universal program unless they admit children regardless of their families' views on sexuality and gender. No ruling exists yet. A decision is expected by the end of June 2027, according to the Becket Fund, the religious-liberty firm representing the preschools.

The argument transcript was not public when this was written, so this piece covers the record the justices walked in with and says plainly what has not been decided.

Who is suing, and over what?

The petitioners are St. Mary Catholic Parish in Littleton, St. Bernadette Catholic Parish, the Archdiocese of Denver, and parishioners Daniel and Lisa Sheley, according to the Supreme Court docket summary at Cornell's Legal Information Institute. The respondents are Lisa Roy, executive director of the Colorado Department of Early Childhood, and Dawn Odean, director of the universal preschool program. CBS News reported that the archdiocese oversees 34 Catholic preschools and that the suit was filed in August 2023.

The Sheleys, Catholic parents of seven, have paid thousands of dollars out of pocket for Catholic preschool, Becket says.

What does the Colorado program require?

Colorado pays for up to 15 hours a week of preschool for 4-year-olds in the year before kindergarten, at public, private, faith-based and in-home providers, CBS News reported. Becket puts the benefit at about $6,000 per child. Every participating provider must give children an equal opportunity to enroll regardless of religious affiliation, race, ethnicity, sexual orientation, gender identity, housing status, income or disability.

In February 2023 the archdiocese asked the state for an exemption that would let its preschools admit only families who follow Catholic teaching on gender identity and sexual orientation. The state refused. Its position, as CBS quoted it, is that providers can teach what they like but cannot turn a child away over a protected characteristic.

What did the lower courts hold?

After a three-day trial, the federal district court denied the preschools a permanent injunction, per the Cornell docket summary. CBS reported that the June 2024 ruling found the program neutral toward religion and generally applicable, because the equal-enrollment rule has no exceptions. The Tenth Circuit affirmed unanimously and applied rational-basis review, the most deferential test in constitutional law. In CBS's account, the panel wrote that the rule "exists in harmony with the First Amendment."

What are the preschools actually arguing?

They say the program is not generally applicable, which is the condition that lets a state burden religious practice under Employment Division v. Smith (1990). Their argument, as the Cornell summary describes it, is that Colorado allows preferences based on income and disability and keeps a discretionary catchall, so a religious preference gets treated worse than comparable secular ones. CBS reported the petitioners also say the exclusion "reduces access." Becket says the state's rules shut out the archdiocese's preschools because they ask families to be "supportive of the Catholic faith," that enrollment at those preschools has fallen 20 percent since the program began, and that two schools have closed. Those figures are the plaintiffs' own and I could not check them independently.

The Trump administration backs the preschools. Solicitor General D. John Sauer told the court in a friend-of-the-court brief that under the Tenth Circuit's ruling, Catholic preschools "must forgo state subsidies" if they want to prefer Catholic families.

What does Colorado say back?

The state says the program "does not require providers to surrender their religious character," in CBS's quotation, and that the enrollment rule lets same-sex parents and Catholic parents alike know their children will not be turned away. Lambda Legal and GLAD Law, which filed a brief on the state's side in August, add that a state funding private providers has a duty not to be complicit in discrimination.

What is the court not deciding?

The justices declined to reconsider Smith itself. Clarence Thomas, Samuel Alito and Neil Gorsuch have each suggested overruling it, but this case runs on how the existing rules apply. The narrower questions: whether a challenger must show unfettered official discretion or categorical secular exemptions to prove a law is not generally applicable, and whether Carson v. Makin, the 2022 Maine tuition decision, displaces Smith only when a state expressly excludes religious institutions.

Practically, a win for the preschools could force Colorado to choose between granting exemptions and losing the religious providers it now funds. A win for the state would leave the Tenth Circuit's reasoning intact for every state that ties money to nondiscrimination terms. Next to watch: the opinion, due by the end of the term in June 2027.