Tomorrow, as voters head to the polls, the Supreme Court will hear oral arguments in St. Mary Catholic Parish v. Roy and address whether Colorado violated the Free Exercise Clause by excluding Catholic schools from its “universal” preschool program. I previously wrote about this case here, here, and here. The program is riddled with exemptions for causes the state favors. Preschools may reserve seats for children with disabilities or low-income families, and under a catchall exemption they may even serve only “gender-nonconforming children,” “children of color,” or “the LGBTQ community.” Yet the state shut out Catholic preschools that admit only families who support Church teaching on marriage and biological sex. The Court declined to reconsider Employment Division v. Smith, the troubled precedent (as at least five justices have suggested) under which neutral laws of general applicability stand even where they burden religious exercise. I suspect that is because the two questions the Court will consider are sufficient to decide the case. The first is whether proving that a law lacks general applicability under Smith “requires showing unfettered discretion or categorical exemptions for identical secular conduct.” The second is whether Carson v. Makin’s rule against excluding religious people and institutions from public benefits reaches only explicit exclusions. The Tenth Circuit’s cramped answers to both would let states gerrymander their way around the Free Exercise Clause.
That this case comes from Colorado should surprise no one. The state has routinely tried to evade religious liberty and force constituents to toe the state’s party line. See the three First Amendment cases at the Court since 2018 in which Colorado has been on the losing side: Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), 303 Creative LLC v. Elenis (2023), and Chiles v. Salazar (2026). St. Mary may well make four.