The Supreme Court on Tuesday, November 3, heard Catholic parishes argue that Colorado violates the First Amendment by keeping them out of its free universal preschool program unless they promise to enroll children regardless of their parents' sexual orientation or gender identity, and the justices appeared to divide along familiar lines.
The case is St. Mary Catholic Parish v. Roy, No. 25-581. We explained the program and the Tenth Circuit's ruling for Colorado in our preview on Monday. This account comes from the official transcript, and every quotation below appears in it.
The three arguments
Nicholas R. Reaves, for the parishes and the Archdiocese of Denver, said their schools "ask all families who enroll to be open to and supportive of the church's teachings," and that excluding them over that practice triggers strict scrutiny under Carson v. Makin, the 2022 Maine tuition case. He also argued that Colorado's rule is not generally applicable under Employment Division v. Smith, because the state "allows over a thousand schools to turn families away for a variety of different reasons" through enrollment preferences.
Sarah M. Harris, the Principal Deputy Solicitor General, argued for the United States on the parishes' side. She urged the Court to hold that benefit programs that make religious groups give up "otherwise lawful religious exercise" trigger strict scrutiny, and said the Court "should decide whether Sherbert survives," a reference to the 1963 unemployment benefits case that Smith narrowed.
Helen Norton, Colorado's Deputy Solicitor General, said, "Colorado welcomes religious preschools to UPK," and that the state asks only that they meet "the same conditions that every publicly funded preschool must meet, religious and secular alike," from class sizes to equal opportunity.
Questions that troubled the parishes
Chief Justice John Roberts noted that Carson and the two school cases before it involved laws that discriminated against religious schools on their face. He asked whether the parishes' theory would reach "driver's licenses, employment benefits, Social Security."
Justice Elena Kagan said Carson rested on equal treatment and that the parishes were asking for more. "The principle at issue here is, do you have to treat them better?" she said. Justice Sonia Sotomayor called the schools' absence from the program "their choice." Justice Ketanji Brown Jackson asked whether the same logic would let a religious school turn away children because of their race, and said she saw no principled basis to distinguish the two.
Questions that troubled Colorado
Justice Samuel Alito listed Colorado's recent losses at the Court in religious objection cases, including the Christian baker in Masterpiece Cakeshop, the website designer in 303 Creative and the counselor in Chiles v. Salazar, and asked, "What should we make of all this?"
Justice Neil Gorsuch said the federal government already applies strict scrutiny to religious claims under the Religious Freedom Restoration Act, and that "there are 40 states that already have to do this."
Justice Brett Kavanaugh asked, "Why not seek the win/win?" He said there are 2,000 schools in the program and "only 34 Catholic schools," enough room for LGBTQ families and the parishes alike. Justice Amy Coney Barrett asked whether the record showed any same-sex couple turned away from these preschools. Norton pointed to one family with a fifth grader at a school that also runs a preschool. In rebuttal, Reaves said that was "the only example that's in the record" and that the parishes found two program preschools within three miles of every Catholic preschool in the archdiocese.
Reaves also told the Court that the congregation preference, which once let faith based schools favor their own members, has been removed. When Kavanaugh asked whether a Jewish, Muslim or Catholic preschool may now prefer children of its own faith, Norton said a funded preschool would violate the program's statute "if they turned folks away because of their religious affiliation." Our preview described that preference as part of the program, and by both lawyers' accounts at argument it is no longer available.
Our count of the argument
The argument began at 10:07 a.m. and the case was submitted at 12:09 p.m., about two hours, twice the time the Court gave the Texas death row case the next morning. By our count of the transcript, the nine justices spoke 241 times and said about 9,500 of the roughly 20,800 words spoken, or about 46 percent.
Justice Jackson said the most, about 2,260 words, followed by Justice Barrett at about 1,610 and Justice Kavanaugh at about 1,440. Justice Sotomayor spoke 44 times, the most turns of any justice, and the Chief Justice 37, many of them to call on colleagues. Justice Thomas spoke 4 times. Kavanaugh and Barrett, whose votes are closely watched in cases like this one, together accounted for about 3,040 words, nearly a third of the bench's total. Turn counts include short interjections, and word counts are approximate.
What happens next
A decision is expected by the end of June 2027. A broad ruling for the parishes could revive Sherbert's strict scrutiny test for benefit programs nationwide. A ruling for Colorado would let states attach the same admissions conditions to every school that takes public money.
The justices heard a Texas capital case the next day, and we report on what they asked in Guerrero v. Johnson. Earlier this week the Court heard Maxwell v. Dinis.
Two Taps News stories summarize reporting and the analysis discussed on Two Taps and Friends. They are not legal advice. Read our standards.
