Mandate for inclusivity, or religious discrimination?
Liberties
by Steve West
Post Date:
November 4, 2026
Mandate for inclusivity, or religious discrimination?
Justices wrestle with Colorado’s application of its nondiscrimination law to funding for Catholic preschool families
Vanessa Nunes / iStock / Getty Images Plus via Getty Images
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Colorado was back before the U.S. Supreme Court again Tuesday in a case that pitted the state’s pro-LGBTQ stance against defenders of a biblical view of sex and marriage. Justices considered arguments from two Denver-area Roman Catholic preschools that the state violated their First Amendment rights when it excluded them from the state’s universal preschool program because of the schools’ requirement that parents support church teaching on sex and marriage.
Under the preschool program, the state provides up to 15 hours of free preschool each week for all pre-K children. But to participate in the program, a preschool has to sign a nondiscrimination agreement that requires it to admit all students—including children in families that do not support Catholic teaching on sex and marriage.
In St. Mary Catholic Parish v. Roy, the state contends that it is applying neutral rules to all schools—all preschools have to admit any student. But the preschools—St. Mary Catholic Parish in Littleton and St. Bernadette Catholic Parish in Lakewood—say the law effectively shuts them and many other religious schools out of the program, burdening their free exercise of religion.
Much of Tuesday’s arguments considered two Supreme Court precedents: the court’s 1990 decision in Employment Division v. Smith and its 2022 decision in Carson v. Makin. The widely criticized Smith decision found that generally applicable and neutral laws are constitutional, even where they burden religious beliefs. It ruled that the free exercise clause was not violated when the state prohibited sacramental use of peyote, a plant-derived hallucinogenic. In their opening brief, the preschools argued that unlike the situation in Smith, Colorado’s law is not generally applicable—and therefore is unconstitutional—because it permits schools to give preferences to families with children who have disabilities and to low-income families.
In the Carson decision, the court threw out as unconstitutional a Maine law that allowed tuition support for attendance at nonreligious private schools because of the law’s targeted, unfair treatment of religious schools. The schools say Carson also dictates the result here, arguing that Colorado cannot force religious schools out of the program by mandating policies at odds with Catholic teaching.
Neither argument carried the day in the lower courts. Both the district court and the federal court of appeal found that Carson only applies where government exclusions are on the explicit basis of religion and not where, as here, the rule is neutral on its face. About the preschools, the 10th U.S. Circuit Court of Appeals concluded that the state “welcomed and actively solicited their participation” in the program and did not seek to keep them from teaching their religious beliefs.
After the hearing, David Gans, who filed an amicus brief with other constitutional law professors affiliated with the Constitutional Accountability Center, issued a statement in support of the state’s arguments. “Both Founding-era state constitutions that inspired the First Amendment and debates in the First Congress recognized that a person’s religious beliefs could not be used to secure an exemption from laws protecting others’ civil rights,” argues the brief.
But an amicus brief that West Virginia and 20 other states filed took aim at the argument that Carson required a state to explicitly target religious schools. “Conditioning funds on agreement to state-approved, anti-religious orthodoxy is a First Amendment violation, full stop,” the states said.
In opening comments, preschools attorney Nicholas Reaves, senior counsel for the Becket Fund for Religious Liberty, echoed that concern when he told justices that “the 10th Circuit wrongly cabined Carson to explicit religious exclusion.”
But the liberal justices didn’t see it that way. Justice Ketanji Brown Jackson led the charge, telling Reaves, “It seems to me you’re asking for a special rule for religious schools.” Justice Sonia Sotomayor added, “I think you are asking us not just to treat religious people the same way—they need a special accommodation.” Along with Justice Elena Kagan, the three seemed adamantly opposed to extending Carson to a case where the state did not explicitly target religion.
But it remains to be seen whether any of the generally conservative justices—including Chief Justice John Roberts and Justices Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh, who can swing votes on the court—will join the liberal justices.
Barrett pressed Colorado Deputy Solicitor General Helen Norton on why the state sees a difference between expressly disfavoring religion and imposing a condition that would have the same effect. “If you know that the effect of choosing that requirement will push out those with a contrary belief, how is that different?” she asked.
Gorsuch wondered aloud how applying strict scrutiny to Colorado’s law because of its burden on religious belief would depart from typical practice. “I guess I’m struggling to see how it would be the end of the world or a sea change to just go straight to strict scrutiny here when the federal government has to anyway as a matter of statutory law under [the Religious Freedom Restoration Act],” said Gorsuch. “That abrogated Smith for purposes of the federal government.” Gorsuch added that many states already have to do this.
And as Reaves argued elsewhere, unless the court deals with Carson’s application to the case, schools may be right back in court. “So I think there’s no question that if this court doesn’t address the Carson issue here, you’re going to have other states trying to do the same thing, trying to exclude religious schools, just without using religious terminology,” he said.
Some states are already taking similar steps. After the 2022 Carson ruling, Maine lawmakers sought a workaround, intent on shutting out religious schools from the state’s tuition support program. Vermont legislators did the same after a federal appeals court struck down their exclusion of religious schools. Attorneys filed a lawsuit on behalf of a Christian family late last month, challenging the new law.
For Thomas Berg, a law professor and religious liberty expert at the University of St. Thomas School of Law in Minneapolis, the question is not whether the court will rule in favor of the schools but on what grounds it will do so. Will it apply a pre-Smith rule that applies strict scrutiny anytime there is a burden on religious liberty, at least in cases involving public benefits? Or will it sidestep Smith by finding the law not neutral nor generally applicable and thus subject to strict scrutiny?
Berg thinks the court majority is more likely to take the latter approach—especially since overruling Smith seems off the table for now. Berg co-authored an amicus brief with two other religious liberty experts and the Christian Legal Society that argued that the state’s rule was unconstitutional because it was selective in its nondiscrimination rules.
By allowing special exceptions for disabled and low-income students, the state’s program was neither neutral nor generally applicable, he told me. That means that, even under Smith, strict scrutiny applied and the state would have to show a compelling interest to override religious liberty, he said.
“What the state ignores is that religion is likewise a protected ground, and it’s also clear that sometimes to take account and allow equal participation of religious people in substance, you need to have distinctive rules,” he said. “So the very same argument applies to allowing a religious provider to have distinctive rules to create a religiously faithful community in the preschool, just like you create a disability-sensitive community or a Head Start community.”
Everyone wins under a rule that accommodates the Catholic preschools, Reaves argued in his first comments to the court.
“This is not a zero-sum game,” Reaves told justices. “Letting families use universal preschool funding at Catholic schools won’t take away a single seat from the over 2,000 preschools already participating in the program. In fact, letting Catholic schools in will create more seats for everyone, even for families who disagree with Catholic teachings.”
A ruling is expected by the end of June 2027.
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Steve is a reporter on First Amendment freedoms for WORLD and author of its weekly newsletter, Liberties. A graduate of World Journalism Institute's mid-career course, he worked for 34 years as a federal prosecutor in Raleigh, N.C., where he resides with his wife.
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