The Supreme Court hears argument on Tuesday, November 3, in St. Mary Catholic Parish v. Roy, a challenge by Catholic preschools to the rule that kept them out of Colorado's free universal preschool program because they will not agree to admit children regardless of their families' sexual orientation or gender identity.
The Supreme Court docket shows the justices agreed on April 20 to hear the case, limited to two of the questions the parishes raised. The Solicitor General is taking part on the side of the parishes and will share their argument time. The Becket Fund for Religious Liberty represents the parishes. Colorado's Department of Law defends the state.
How the program works
Colorado voters approved Proposition EE in 2020 to fund voluntary universal preschool, and the legislature built the program the next year, according to the Tenth Circuit's opinion. Families can get up to 15 hours a week of free preschool at participating schools, public or private, SCOTUSblog explains.
Every participating school must sign an agreement promising eligible children "an equal opportunity to enroll." The protected list in the state law covers race, ethnicity, religious affiliation, sexual orientation, gender identity, housing status, income and disability, as they apply to the child or the family. Families rank schools online and an algorithm matches them. Schools can set matching preferences, including one that lets faith based providers favor members of their own congregation.
The parishes say Catholic teaching requires them to consider a family's sexual orientation and gender identity before admitting a child, and that families must support the Church's teaching on sex and marriage. In 2023 the Archdiocese of Denver told its preschools not to register. The plaintiffs are the archdiocese, St. Mary Catholic Parish in Littleton, St. Bernadette Catholic Parish in Lakewood and two parents, Daniel and Lisa Sheley.
What the Tenth Circuit actually held
A three judge panel ruled for Colorado on September 30, 2025, affirming a district court decision reached after a three day trial. Our reading of the opinion, written by Judge Richard Federico, comes down to three points.
First, Colorado did not exclude religious schools. The court said the state "welcomed and actively solicited their participation" and that the equal opportunity rule "applies to all preschools regardless of whether they are religious or secular."
Second, that sets the case apart from Carson v. Makin, the 2022 decision striking down Maine's exclusion of religious schools from tuition aid. Those cases, the panel said, involved laws that singled out religious status or religious use. Colorado lets participating preschools teach the faith with state money.
Third, the rule is generally applicable under Employment Division v. Smith, the 1990 case that lets neutral laws stand even when they burden religious practice. The court found the matching preferences do not give officials room to grant the exemption the parishes want, because no school in the program may weigh sexual orientation or gender identity "for any reason."
Our numbers on who is in and who is out
The Tenth Circuit said almost 2,000 preschools take part in the program, and forty of them are faith based. By our arithmetic, that makes religious providers about 2 percent of participating schools. The opinion also says the archdiocese alone oversees thirty six Catholic preschools in Colorado, almost as many as all the faith based schools now in the program combined. Becket's case page puts the state funding at about $6,300 for 15 hours a week of preschool, a figure from the parishes' side that we could not check against state data.
The two questions the justices took
The first asks how a challenger proves a law is not generally applicable under Smith, and whether it takes proof of unfettered official discretion or categorical exemptions for secular conduct. The parishes argue that any secular exception, like the preferences for low income families and children with disabilities, should trigger strict scrutiny. Colorado calls that a "new rule that would trigger strict scrutiny whenever public-benefits conditions incidentally burden religiously motivated conduct."
The second asks whether Carson applies only when a state openly excludes religious people and institutions. The parishes say Colorado knowingly shut out Catholic preschools for their religious exercise, which in their view is the same thing.
Why it matters beyond Colorado
A ruling for the parishes could require states to carve religious exemptions into nondiscrimination conditions on school funding, and it would change how lower courts apply Smith to any law with secular exceptions. A ruling for Colorado would confirm that a state may attach the same admissions conditions to every school that takes its money. A decision is expected by the end of June 2027.
St. Mary is the second of three cases we are following at the Court this week, after Maxwell v. Dinis on First Step Act credits on Monday. On Wednesday the Court takes up Guerrero v. Johnson, a Texas death row case.
Two Taps News stories summarize reporting and the analysis discussed on Two Taps and Friends. They are not legal advice. Read our standards.
