The U.S. Supreme Court heard oral arguments in St. Mary Catholic Parish in Littleton v. Roy on Election Day, considering whether Colorado can require religious preschools to admit children regardless of gender identity and sexual orientation as a condition for receiving state preschool funding.
Explainer Understanding the Supreme Court’s Impact on Law and Liberty
The case raises significant questions about the intersection of religious liberty and state nondiscrimination mandates. At its core, the dispute is whether Colorado’s requirements for its universal preschool program unlawfully burden the free exercise of religion by forcing faith-based schools to choose between adhering to their religious beliefs and participating in a public benefit program.
Colorado’s universal preschool program, funded by Proposition EE, was established to provide free preschool to all families in the state. The program uses a “mixed delivery system,” allowing public, private, secular, and religious schools to participate. However, to receive state funding, all participating preschools must agree to enroll children “regardless of … religious affiliation, sexual orientation … or gender identity.”
The Archdiocese of Denver, which oversees 36 Catholic preschools, maintains that this requirement conflicts with its religious teachings. The Archdiocese requires both staff and families to affirm church doctrine on issues of sexuality and gender. When the Archdiocese sought an exemption from the state’s nondiscrimination rule, Colorado denied the request. As a result, Catholic preschools opted out of the program, and families such as Daniel and Lisa Sheley lost access to the state-funded benefit.
Lower Court Decisions
A federal district court ruled in favor of Colorado, finding that the state did not exclude religious schools but simply applied a nondiscrimination policy equally to all program participants. The Tenth Circuit Court of Appeals upheld this decision, concluding that the mandate was “neutral and generally applicable” under the Supreme Court’s precedent in Employment Division v. Smith.
The Archdiocese and affected families challenged this reasoning, arguing that the policy is not truly neutral or generally applicable. They pointed to 17 exemptions Colorado granted for reasons such as vaccination status and residential location. According to the plaintiffs, these individualized exemptions undermine the policy’s general applicability, referencing the Supreme Court’s decision in Fulton v. City of Philadelphia. In Fulton, the Court held that when a law allows for discretionary exemptions, it cannot be considered generally applicable if it does not extend similar consideration to religious objections.
The plaintiffs also argued that Colorado’s program gives preference to special education and Head Start students, which they say prioritizes secular reasons over religious ones. They cited Tandon v. Newsom, in which the Supreme Court found that government policies are not neutral if they treat comparable secular activities more favorably than religious ones.
Religious Liberty Precedents
The Supreme Court has recently issued several rulings in favor of religious institutions in cases involving state funding and religious exercise. In Trinity Lutheran Church of Columbia, Inc. v. Comer, the Court held that a state could not exclude a church from a public benefit program solely because of its religious status. Similarly, in Espinoza v. Montana Department of Revenue and Carson v. Makin, the Court ruled that states cannot bar religious schools from public funding programs simply because they are religious or because funds might be used for religious purposes. These decisions are available for review at the Supreme Court’s official site:
The plaintiffs in St. Mary also referenced Mahmoud v. Taylor, where the Supreme Court found that a Maryland school board violated parents’ free exercise rights by refusing to allow families to opt out of LGBTQ-inclusive storybooks. The Court recently reinforced this principle in Mirabelli v. Bonta, emphasizing parental rights in directing their children’s religious upbringing.
Kevin Kreutz, a constitutional litigator, summarized the plaintiffs’ position: “A door that is open only to those willing to compromise their faith is not open at all.”
Broader Implications and Next Steps
The outcome of St. Mary could have broad national implications as more states expand school choice and voucher programs. Critics of Colorado’s policy argue that the Tenth Circuit’s reasoning would allow states to nominally include religious schools in public programs while imposing conditions that many cannot meet for religious reasons. They contend this approach could undermine Supreme Court precedents such as Carson v. Makin, which emphasized that states cannot exclude religious schools from public benefits based on their beliefs or practices.
Colorado officials have defended the nondiscrimination requirement as necessary to ensure equal access for all families, regardless of background or identity. The state has not publicly addressed the specific criticisms raised by the Archdiocese and affected parents regarding religious exemptions or the impact on faith-based schools.
The Supreme Court’s decision in St. Mary is expected to clarify the extent to which states can attach nondiscrimination conditions to public funding for religious schools. The ruling will likely address whether such conditions violate the First Amendment’s protections for religious exercise, and could set a precedent affecting similar programs nationwide.
A decision is expected by the end of the Court’s current term.
