On Colorado’s continuing assault on religious liberty

If it’s a day that ends in “y,” the State of Colorado has probably passed another law hostile to free speech and religious liberty.

And the state’s persistent animus toward Christianity has been keeping the United States Supreme Court busy with First Amendment cases. The Court’s next term will be no exception. On April 20, SCOTUS agreed to hear a case about another law that is consistent with prior unconstitutional Colorado laws that discriminate against Christians and other religious faiths.

On the one hand, Colorado’s hostility toward free speech and religious liberty is alarming. On the other hand, ironically, Colorado has served up softballs to the United States Supreme Court, resulting in strengthening protections for speech and religious exercise. Where Colorado has attempted to infringe religious liberty, SCOTUS has used the state’s bigoted laws to strengthen and clarify First Amendment protections. The latest battle in the war will be heard by SCOTUS next term, and it will probably be another defeat for Colorado’s religious hostility and another win for religious freedom.

Perhaps the most famous prior case was Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. In that case, Jack Philips refused to create a cake celebrating same-sex marriage, for which he was sued under a Colorado law, which would have compelled him to say something he believes is false. Finding in favor of Philips in 2018, SCOTUS held that Colorado showed “a clear and impermissible hostility toward the sincere religious beliefs that motivated [Phillips’] objection.” This did not prevent Colorado from trying to take another bite at the apple, continuing its persecution of Philips for about another decade until the Colorado Supreme Court put an end to it.

But Colorado keeps coming back for more. In 2023, SCOTUS struck down a law that would have compelled a website designer to create websites with messages that violate her religious beliefs. The Court held that this is tantamount to compelled speech, giving the website designer a 6-3 victory. And yet another matter in the current term will be decided this spring.

In this case, a counselor challenged a Colorado law that forbids what is pejoratively called “conversion therapy.” The law would prohibit people with unwanted same sex attraction or gender dysphoria from seeking counseling to overcome these impulses and confusion. Yes, Colorado (along with about 25 other states) is attempting to make it illegal for people to seek psychological counseling. Based on the oral argument, it is highly likely that SCOTUS will strike down this law, as well.

But wait, there is more! On April 20, SCOTUS accepted for review yet another case in which Colorado is attempting to discriminate against Christians. Colorado has a new universal preschool program, which guarantees fifteen hours of state-funded preschool services. But the Colorado Department of Early Childhood has attached discriminatory requirements that preschools must meet to be eligible for funding. For example, the Department has mandated that preschools may only receive funds if they agree to hire employees who do not share the faith of the school, even though those employees may publicly denounce the school’s religious mission.

Even more onerous, the Department has required that preschools adopt the entire suite of science-denying gender ideology, including forcing girls to share restrooms with boys, using “preferred” pronouns, and mandating that “trans identified” boys (yes, this is preschool) be housed with girls on field trips.

Several Catholic parishes and the Archdiocese of Denver (collectively the “Church”) applied for religious accommodation to the law, which the Department denied. Both the Federal trial and appellate courts in Colorado upheld the denial of an accommodation, after which the archdiocese and parishes filed a petition with the U.S. Supreme Court. “[F]ar from facilitating ‘universal’ preschool,” the Church argued in its petition to the Court, “Colorado’s exclusion of Catholic preschools reduces access, pushing parents and children toward preschools that share the government’s views on these issues and penalizing the religious schools and families who disagree.”

On April 20, SCOTUS granted review, and will hear the case, styled St. Mary Catholic Parish v. Roy, in the October 2026 term. Based on recent rulings in similar cases, it is more likely than not that the Court will—once again—rule against Colorado’s continuing war on the free exercise of religion. When lawyers find a case that is nearly identical to a prior one in both the facts and the law, they say that the new case is “on all fours” with the precedent. At least one recent SCOTUS ruling (and possibly as many as three) probably meets those criteria for consideration of the St. Mary case.

In the 2022 case of Carson v. Makin, the State of Maine permitted school vouchers to be used for any high school of a student’s choosing, even if the school is not in the district where the student resides, or even in the state. Like Colorado, however, Maine prohibited the use of vouchers for religious schools. In a 6-3 decision, SCOTUS ruled that this restriction violated the free exercise clause of the First Amendment, because it discriminated against religious schools and the parents and students who chose those schools.

Writing for the majority, Chief Justice Roberts stated that the Maine scheme operated deliberately to “identify and exclude otherwise eligible schools on the basis of their religious exercise” and that such is “discrimination against religion” in violation of the First Amendment.

In ruling for the religious freedom of Maine’s students, SCOTUS cited another recent decision, Espinoza v. Montana Department of Revenue, from 2020. Montana instituted a program for providing dollar-for-dollar tax credits up to $150.00 for anyone who contributed to the tuition reimbursement or scholarship fund at private schools. The Montana Department of Revenue, however, decreed that no credit would be given if the donation was to a religious school.

Again writing for the majority, Chief Justice Roberts held that the Maine law “bars religious schools from public benefits solely because of the religious character of the schools” and “bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school,” in violation of the free exercise clause of the First Amendment.

A “state need not subsidize private education,” the Chief Justice wrote. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

The Espinoza case invoked yet another case very close to being on all fours with the new St. Mary Catholic Parish case. In Trinity Lutheran Church of Columbia v. Comer, decided in 2017, the State of Missouri instituted a program to provide funds for the purchase of ground-up, processed rubber tires to be used for playgrounds at schools. Trinity Lutheran filed a timely application for the very limited funds and met all the requirements to receive the benefit. The school was nonetheless denied the grant, solely because it is a religious school.

By a vote of 7-2, with Chief Justice Roberts again writing the majority opinion, SCOTUS ruled that the exclusion of Trinity Lutheran Church from the program is a violation of the free exercise clause of the First Amendment. The “exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church,” the Chief wrote, “is odious to our Constitution … and cannot stand.”

The new case from Colorado, while not perfectly on all fours with these three precedents, is close enough to suggest that Colorado will lose another battle in its war against Christianity. Writing in Trinity Lutheran, Chief Justice Roberts wrote, “The State in this case expressly requires Trinity Lutheran to renounce its religious character in order to participate in an otherwise generally available public benefit program, for which it is fully qualified. Our cases make clear that such a condition imposes a penalty on the free exercise of religion,” and must be rejected.

Hopefully, he will write a nearly identical sentence in the next term, substituting “St. Mary Catholic Parish” for “Trinity Lutheran.”