By The Editors

Written by The Editors

Estimated Reading Time: 3 minutes

The Supreme Court heard argument today over whether Colorado can bar Catholic preschools from a public program for refusing to sign a nondiscrimination pledge. The fight pits religious free exercise against a rule protecting LGBTQ families’ access to a taxpayer-funded benefit.

On Nov. 3, the justices heard oral argument in St. Mary Catholic Parish v. Roy, brought by the Archdiocese of Denver, two Catholic parishes, and two families excluded from Colorado’s universal preschool program because they will not sign its nondiscrimination agreement (SOURCE HERE). The case tests how far the Court’s recent religious-liberty rulings reach.

Why it matters: The outcome will shape whether a state can condition a public benefit on a religious institution’s agreement to a nondiscrimination rule it says conflicts with its beliefs, a question that reaches well beyond preschools.

Where the energy is moving

From: Colorado’s authority to attach a nondiscrimination condition to its preschool funding.

To: The Supreme Court, which is weighing whether that condition burdens religious free exercise.

The signal: Argument held Nov. 3 in St. Mary Catholic Parish v. Roy, No. 25-581, on the reach of the Free Exercise Clause and the Court’s decision in Carson v. Makin (SOURCE HERE).

What it means for you: If you follow religious liberty, the signal is that the Court is again testing the line between neutral public conditions and targeting of the faithful, this time over who can take a state preschool subsidy.

The case

Colorado’s voter-approved universal preschool program offers families up to 15 hours a week of free preschool, and participating schools must sign a nondiscrimination agreement barring them from refusing children based on protected characteristics, including sexual orientation and gender identity (SOURCE HERE).

The Archdiocese of Denver directed its schools in 2023 not to enroll rather than sign, saying the pledge conflicts with Catholic teaching, and the Becket Fund’s Nicholas Reaves is lead attorney for the parishes, with the federal government backing them.

The questions are narrow: what a challenger must show to prove a law is not generally applicable under Employment Division v. Smith, and how far Carson v. Makin reaches; the Court did not agree to consider overruling Smith, so that precedent is not on the table.

The clash is real on both sides: the parishes say Colorado conditions a public benefit on surrendering their beliefs, while the state says participating schools simply cannot turn away the children of same-sex families who use the same taxpayer-funded program.

What they’re saying

The parishes frame it as exclusion, with the Becket Fund arguing Colorado is forcing a choice between a public benefit and Catholic teaching, while Colorado frames its rule as neutral, applying the same enrollment condition to every school that takes public money rather than singling out religion (SOURCE HERE).

What The Other Side Is Doing And How To Neutralize It

Supporters of Colorado’s rule say a school taking public money should not be able to turn away a child because of who the child’s parents are, while the parishes say the state is punishing them for their faith.

Colorado’s case is not a strawman: the nondiscrimination clause is about which children a publicly funded school may refuse, and a rule that keeps a state preschool subsidy open to the children of same-sex couples is a serious interest, not mere political correctness.

But the parishes’ case is strong on the law, because the Court’s recent decisions in Carson v. Makin and Trinity Lutheran hold that a state generally cannot exclude religious institutions from a public benefit simply because they are religious, and conditioning the subsidy on a pledge the church cannot sign looks like exactly that kind of exclusion.

The honest read is that the conservative free-exercise argument is the stronger one here, while the question the Court actually took is narrow, about the test for general applicability and the reach of Carson, not a sweeping rewrite of religious-liberty law.

Do not expect the Court to gut Smith, and do not read the argument as a decided case. For the religious-liberty side of the litigation, the Becket Fund, which represents the parishes, lays out its case (VISIT HERE). The key question is whether the Court rules narrowly on Colorado’s specific pledge or more broadly on when a public condition burdens faith.

SCOTUS On 1A Watch

A real clash, a narrow question. The case sets a genuine conflict: Colorado’s interest in keeping a public benefit open to all children against the parishes’ refusal to sign a pledge they say violates their faith, and both sides deserve to be taken seriously rather than caricatured.

On the law, the free-exercise argument looks stronger, given Carson and Trinity Lutheran, but the question the Court agreed to decide is narrow, about the test for general applicability and the reach of Carson, not the future of Smith.

Resist reading the argument as a ruling, because no decision has issued and the justices’ questions are not a verdict. Watch for the opinion by summer, and whether it is narrow or broad, because that scope is what will determine how far this reaches beyond Colorado.

Facts are prickly things,

-The Editors

Liberty · Upstream of the Swamp · November 3, 2026

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