Supreme Court to hear Catholic parishes' challenge to Colorado preschool rules on Nov. 3

The Supreme Court will hear arguments on Tuesday, Nov. 3, in a dispute over whether Colorado may keep Catholic parish preschools out of its universal preschool program because their admissions practices follow church teaching on sex and gender. The case, St. Mary Catholic Parish v. Roy, No. 25-581, is set for the second day of the court’s November sitting.

The Justice Department is backing the parishes. On Oct. 5, the court granted the solicitor general’s motion to take part in the argument as a friend of the court and to split time with the petitioners.

What the court agreed to decide

The justices granted review on April 20 but limited it to two of the three questions the parishes raised. According to the questions presented, the first asks whether a challenger trying to show that a law is not generally applicable under the 1990 decision Employment Division v. Smith must prove either unfettered government discretion or categorical exemptions for identical secular conduct. The second asks whether the 2022 ruling in Carson v. Makin overrides Smith only when the government explicitly excludes religious people and institutions.

The court declined to take up the parishes’ third question, which asked outright “Whether Employment Division v. Smith should be overruled.” Under Smith, neutral and generally applicable laws face only lenient review even when they burden religious practice; laws that fail that test must survive strict scrutiny.

The Colorado program

Colorado voters approved Proposition EE in 2020 to fund voluntary universal preschool, and providers began registering for the program in 2022, according to the Tenth Circuit’s opinion. The program pays families to send their children to a participating public or private preschool of their choice. Becket, the law firm representing the parishes and a Catholic family, says the program covers 15 hours a week, worth about $6,000 per child.

Participating preschools must give all families an equal opportunity to enroll regardless of characteristics including religious affiliation, sexual orientation and gender identity. The parish preschools say Catholic teaching requires them to consider the sexual orientation and gender identity of a child and the child’s parents when deciding admission, the appeals court said.

The parishes argue in their petition that Colorado allows other preschools to give preferences to certain groups, such as low-income families and children with disabilities, while refusing to accommodate religious preschools.

The lower-court ruling

A three-judge Tenth Circuit panel ruled for the state on Sept. 30, 2025, in an opinion written by Judge Federico. The panel held that the requirement is neutral and generally applicable, reasoning that preferences tied to disability and income do not undercut the state’s interest in the same way an exemption based on sexual orientation or gender identity would. It applied rational-basis review and said the Carson line of cases did not control because the program does not exclude religious schools and actively recruits them.

The arguments

The Justice Department, in a brief signed by Solicitor General D. John Sauer, argues that Colorado treats comparable secular conduct more favorably by permitting income- and disability-based preferences, and that a catchall provision allowing case-by-case preferences also defeats general applicability. It contends strict scrutiny should apply.

Colorado says its rule treats every participating preschool alike, describing a requirement for “all preschools—secular and religious alike—to deliver publicly-funded services without excluding families based on protected-class status.” The state argues the disability and low-income priorities advance equal access rather than create exceptions, that Carson involved a program that shut out religious schools, and that its rule would survive strict scrutiny in any event.

The case drew dozens of friend-of-the-court briefs on both sides, including filings from members of Congress, coalitions of states, religious organizations, civil-rights groups and legal scholars.

The court has not said when it will rule; decisions in argued cases are generally issued before the term ends next summer.