Stop me if you’ve heard this one: a state is trying to exclude religious schools from an otherwise generally available education program. It feels like every couple years the Supreme Court has to go back and correct another state trying to ignore its clear religious freedom decisions.
But wait, there’s more. The state in question is Colorado, which is probably the single most frequent loser in recent Supreme Court religion and speech jurisprudence. Remember Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), in which Colorado was not permitted to punish cake artist Jack Phillips for declining to design a cake for a same-sex wedding because it violated his sincerely held religious beliefs? Or 303 Creative LLC v. Elenis (2023), in which Colorado was not permitted to force graphic artist and website designer Lorie Smith to communicate messages or promote events that are inconsistent with the same beliefs? Are state officials secretly trying to keep the Becket Funds and ADFs of the world in business? Or is Colorado really that dense?
In St. Mary Catholic Parish v. Roy, two Catholic parishes, an archdiocese, and two Catholic parents of preschool-age children challenged a state nondiscrimination requirement that conditions participation in a publicly funded preschool program on a mandate that the schools operate in a way that defies the beliefs of their faith. The Catholic preschools seek to admit only families who support Catholic teachings on marriage and gender, which they hold to be a core aspect of their religious mission, and not to subscribe to the state’s contrary ideology concerning sexual orientation and gender identity. The state excludes Catholic preschools from this otherwise generally available benefit while granting numerous exemptions for secular purposes—a violation of the Free Exercise Clause.
Colorado created its Universal Preschool Program to pay for families to send their children to the preschool of their choice—public or private. Participation is supposedly limited to those who comply with an “equal opportunity” mandate that includes the same enrollment opportunities regardless of several categories: race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability. Sexual orientation and gender identity are the categories relevant to this case. The district court characterized the mandate as “neutral and generally applicable” and, citing the Supreme Court’s decision in Employment Division v. Smith (1990), rejected the plaintiffs’ challenge. The Tenth Circuit affirmed, similarly relying on Smith. Last week, the plaintiffs filed a cert petition.
The courts below have several major problems in their analysis, starting with the framing of this case. The Colorado mandate is hardly neutral. It is riddled with exemptions—but only for causes the state favors. Preschools may prioritize low-income families. They may reserve seats for children with disabilities. They may even admit only “gender-nonconforming children,” “children of color,” or “the LGBTQ community” under the program’s catchall exemption. Yet when Catholic preschools asked for an accommodation to admit only families who support Catholic teachings on marriage and gender, Colorado slammed the door shut.
This is textbook religious discrimination dressed up in the language of “nondiscrimination.” The state decides which forms of selectivity are virtuous and which are verboten—and unsurprisingly, traditional religious beliefs end up on the wrong side of that line.
The Tenth Circuit’s decision also puts it in the minority of a 7–4 circuit split on how to determine general applicability, Smith’s core concept, under the Free Exercise Clause. The majority view, which is more faithful to the Court’s decision in Fulton v. City of Philadelphia (2021), examines all discretion and categorical exemptions to see if any undermine the government’s asserted interest “in a similar way.” This makes sense. Whether exemptions are based on disability, income, race, or gender identity, each undermines Colorado’s claimed interest in ensuring equal access to preschool in precisely the same way.
The minority view shared by the Tenth Circuit, by contrast, employs a cramped search for only unfettered discretion and exemptions for identical conduct. Under this approach, Colorado can exempt preschools that prioritize children with disabilities while excluding Catholic preschools that require families to support Catholic teaching—even though both policies deny some families “equal opportunity” to enroll. The Tenth Circuit’s reasoning would let governments “subvert free exercise through clever drafting,” as the Third Circuit warned in a decision issued four months before that of the Tenth. In 2022, Justice Thomas, joined by Justices Alito and Gorsuch, recognized the circuit split as “widespread, entrenched, and worth addressing,” which alone would be reason to grant certiorari.
Additionally troubling is how the Tenth Circuit has effectively gutted the clear rule of Carson v. Makin (2022). It distinguished Carson because Colorado’s exclusion supposedly did not “specifically target[]” religious use “on the explicit basis” that it was religious. But Carson itself embraced no such limitation. Maine’s tuition assistance program in that case did not exclude all religious schools—only those presenting “academic material through the lens of [their] faith.” Carson held that governments cannot exclude religious schools from benefit programs “because of their religious exercise.” Period. Not just when the exclusion is “explicit” or “specifically targeted” at religion, as the cramped Tenth Circuit standard suggests, but whenever religious exercise is the reason for exclusion. Here, Catholic preschools are excluded because their religious exercise includes admitting only families who support Catholic teaching. That is exclusion “because of their religious exercise” under any honest reading of Carson.
Ultimately, this case illustrates why Employment Division v. Smith should be overruled. As Justice Alito wrote in his concurrence in the judgment in Fulton, Smith is “fundamentally wrong.” It failed to capture the original meaning of the Free Exercise Clause. And instead of offering clarity or finality, it has generated endless circuit splits and invited religious gerrymandering.
Alito was joined in his opinion by Justices Thomas and Gorsuch, and Justice Barrett, joined by Justice Kavanaugh, noted the “serious arguments that Smith ought to be overruled” in another concurrence. So at least five justices seem to agree on the need to overrule Smith in a future case. St. Mary Catholic Parish should be that case. An overdue overruling could become the most memorable aspect of a case that already has great potential to once again strike a blow for robust protection of religious freedom in the recalcitrant State of Colorado.