Supreme Court Likely to Uphold Religious Freedom in Education in Colorado

On November 3, 2026, the Supreme Court heard oral arguments in St. Mary Catholic Parish, Littleton, Colorado v. Roy, a case with potentially far-reaching implications for the First Amendment right to the free exercise of religion and parental choice in education. In St. Mary the Tenth Circuit affirmed that two Catholic preschools in Colorado were ineligible to participate in the state’s voluntary UPK or universal preschool program because Church leaders refused to comply with its nondiscrimination requirement to “provide eligible children an equal opportunity to enroll and receive preschool services regardless of…sexual orientation [and] gender identity” insofar as it violated Catholic teachings. This column thus reviews the facts plus judicial history in St. Mary as well as the oral arguments before offering analysis and commentary on its significance for religious liberty and parental choice in schooling.

St. Mary Catholic Parish in Littleton v. Roy

Judicial History

Litigation arose when officials in two Catholic parishes and their preschools, the second of which has since closed, among the 34 preschools the archdiocese of Denver oversaw, and parents who hoped to enroll their children in a UPK-eligible preschool, challenged the law’s excluding them as violating their First Amendment rights to the free exercise of religion. The program, which was adopted in 2022, reimburses institutions for providing at least fifteen-hours of free preschool per week for eligible children regardless of their races, ethnicities, religious affiliations, sexual orientations, and other characteristics or those of their families.

Catholic officials and the parents unsuccessfully filed suit when program administrators denied their requests to participate because they refused to accept families who supported Church beliefs, including those on sex and gender. The trial court rejected the parental assertion that “they have been denied over $12,000 in tuition assistance” simply for choosing a Catholic education. After the federal trial court ordered the Catholic school officials to admit all students regardless of their sexuality, the Tenth Circuit unanimously affirmed that the antidiscrimination provision did not violate the First Amendment.

The Tenth Circuit largely ignored the three most recent Supreme Court cases on aid, discussed below, Trinity Lutheran Church of Columbia v. Comer, Espinoza v. Montana Department of Revenue, and Carson v. Makin, agreeing that states cannot deny generally applicable benefits to recipients solely because they are religious. Instead, the panel upheld the law as neutral toward religion and generally applicable. Without identifying how the law respected the religious freedom of the preschools and parents, the court thought that because “Colorado’s UPK program went to great effort to be welcoming and inclusive of faith-based preschools’ participation[, t]he nondiscrimination does not violate the Parish Preschools’ First Amendment rights.”

Oral Arguments

The Supreme Court noted two key questions at issue during oral arguments: “1. Whether proving a lack of general applicability under Employment Division v. Smith requires showing unfettered discretion or categorical exemptions for identical secular conduct. 2. Whether Carson v. Makin displaces the rule of Employment Division v. Smith only when the government explicitly excludes religious people and institutions.”

In Smith the Justices upheld the dismissal of two drug counselors in Oregon who ingested peyote as part of a sacramental ritual in their Native American Church, a legally organized religious movement recognized by the federal government. The Court decided that generally applicable, religion-neutral laws with the effect of burdening particular religious practices need not be justified by a compelling government interest subject to strict scrutiny, the highest level of constitutional scrutiny in which case restrictions usually fail.

The Carson Court invalidated a program in Maine’s “nonsectarian” requirement which provided tuition assistance to parents in districts lacking their own secondary schools because this condition violated the Free Exercise Clause as neither neutral toward religion nor did it afford parents the opportunity to send their children to the schools of their choice.

In an interesting unresolved issue, the Supreme Court specifically chose not to address a third question on whether to uphold the controversial principle it enunciated in Employment Division. Even so, Smith was mentioned more than 90 times during the oral arguments.

During the oral arguments in the wake of the Supreme Court’s three most recent cases on aid to faith-based schools, reviewed below, that the Justices were inclined to support St. Mary. For instance, in focusing on the exclusion of the Catholic preschools, Justice Barrett asked the state’s lawyer “[y]ou agree, don’t you, that Colorado could not say that Catholic schools or evangelical schools or Orthodox Jewish schools were excluded from participation in the UPK program?” She then requested that the lawyer “explain what the difference is between that and choosing to impose a condition that you know that those schools would be unable to agree to,” suggesting that the impact of the nondiscrimination requirement is to “push out” those with traditional beliefs.

Justice Kavanaugh wondered “[w]hy not seek the win/win?” exempting the Catholic

preschools, observing that more than 2,000 preschools participate in Colorado’s UPK program, of which only 34 are overseen by the Archdiocese of Denver. He added: “[t]here are plenty of opportunities to respect the rights of the religious believers and respect the ability of LGBT parents to find among the 2,000 schools an appropriate fit for their children.” Earlier, in what amounts to reduction to the absurd, Kavanaugh incredulously asked the attorney for Colorado why “[y]ou can have a school that says, we’re only going to admit vegetarians who speak two languages. But you won’t allow Catholic schools to limit enrollment in this one particular way[?]”

In light of Masterpiece Cakeshop v. Colorado Civil Rights Commission and 2023’s Creative 303 v. Elenis, and this year’s Chiles v. Salazar, three cases wherein the Supreme Court chastised Colorado for its failure to respect religious liberty, Justice Alito mused “[w]e have the state’s record” in other First Amendment cases “What should we make of this?”

On the other hand, the Justices who oppose aid to faith-based schools feared that the Catholic schools were asking for special treatment allowing them to discriminate against families based on their protected characteristics. Early in the oral arguments Justice Jackson, who opposes any type of aid to religious schools and people of faith, accused, without any legitimate foundation, the Archdiocese and its preschools of seeking a “special rule” enabling them to reject students based on their own or their parents’ sexual orientation or gender identity. Justice Kagan then rejected the plaintiffs’ reliance on Carson claiming that “[t]he principle at issue here is, do you have to treat them better?”

Analysis and Commentary

As highlighted, in light of its three most recent cases on aid, all of which were authored

by Chief Justice Roberts, the majority of Supreme Court Justices appeared favorably disposed to rule in favor of St. Mary, thereby continuing their trend of expanding the parameters of assistance to religious schools and people of faith. Consequently, it is perplexing that the Tenth Circuit largely ignored this trilogy of relevant cases. In fact, it is difficult to make sense of the actions of Colorado officials and the attitude of the Tenth Circuit in describing the preschools’ critiques of the law and the director implementing it “as mere doublespeak,’” demonstrating judicial lack of respect, even hostility, for the proponents of religious freedom.

In light of the preceding, this section briefly reviews the holdings in these three cases because they serve as necessary background for the Supreme Court’s position on aid and religious freedom. In 2017’s Trinity Lutheran the Justices decided that Missouri could not deny a faith-based preschool the opportunity to participate in a program to purchase rubber playground surface materials made from recycled tires to enhance safety for children. Writing for the Court, Roberts emphasized that “the exclusion of Trinity Lutheran Church from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”

Three years later, in Espinoza, the Supreme Court invalidated Montana’s constitutional prohibition of public aid to “sectarian schools” as lacking a compelling governmental interest.

The Court explained that because it was permissible under the Establishment Clause, the Montana’s contested no-aid provision impermissibly discriminated based on religious status. The Justices conceded that while the disputed language sought to separate church and state more strictly than the Federal constitution, it was invalid as lacking a compelling interest that could have satisfied strict scrutiny analysis.

Next, as described earlier, the Carson Court invalidated a Maine statute excluding “sectarian” schools from a program providing tuition assistance to parents in districts lacking their own secondary schools. The Justices concluded that the law violated the Free Exercise Clause because it was neither neutral toward religion nor afforded parents the opportunity to send their children to the schools of their choice.

Shifting to another dimension of religious liberty, the Supreme Court upheld the rights of people of faith in three earlier cases from Colorado and the Tenth Circuit. In light of 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Commission and 2023’s Creative 303 v. Elenis, and this year’s Chiles v. Salazar, it appears that the Supreme Court will add St. Mary as the fourth case chastising Colorado officials for their poor record of protecting religious freedom.

In Masterpiece Cakeshop, without addressing the underlying constitutional questions surrounding a Christian baker’s unwillingness to prepare a wedding cake for a same-sex couple due to his beliefs that marriage is between one man and one woman, the Court reasoned that the Commission violated his rights by demonstrating hostility to his faith. Similarly, in Creative 303 the Court indicated that the Commission violated the rights of a Christian wedding website designer in trying to force her to violate her beliefs on marriage that are identical to the baker’s by offering her services to a same-sex couple, albeit based on speech rather than religious grounds. In both cases the Justices criticized Colorado’s Commission for trying to compel Christians to communicate messages inconsistent with their faiths.

Most recently, in Chiles, this past March, the Supreme Court ruled in favor of a licensed Christian therapist. The Court found that a Colorado law infringed on the therapist’s right to free speech as she offered counseling from her Christian perspective because it banned her from practicing “conversion therapy” for minors experiencing gender dysphoria.

In light of the Supreme Court’s recent precedent, it is difficult to see how the actions of Colorado officials in St. Mary and the Tenth Circuit can be upheld as they ignored the preschools’ religious rights by seeking to order them to violate their deeply held beliefs by accepting students whose families’ lifestyles are incompatible with Catholic teachings.

A key question one must ask is why parents who reject the Roman Catholic Church’s teachings on such important, and intimate, issues as family and sexuality would even want to send their children to schools inconsistent with their beliefs. In this regard Justice Kavanaugh reflected that “[i]t seems like this would be a solution in search of a problem that is unnecessary to create this clash…I’m just trying to figure out why we’re here. Why has this been provoked when there is an ability for everyone to go to the school — a good school — that’s a fit for them and respect religious rights?”

Even more to the point, Justice Barrett questioned Colorado’s banning the Catholic schools from the program because no family had yet challenged or asked St. Mary’s officials to change their policies on sexuality. Due to the lack of an actual case or controversy requirement for litigation, rooted in Article 3, Section 2 of the United States Constitution, Justice Barrett raised perhaps the question of the day to Colorado’s lawyer in asking “why are we here?”

When the Supreme Court rules, probably at the end of its term in late June or early July, we should have a better understanding of how far it is willing to go in continuing to protect parental religious freedom in education. I plan to write a follow-up column at that time.