With the Supreme Court’s next slate of decisions for this term not coming until Thursday, it is worth looking ahead to some of the top cases that the justices will hear next term. One of them, St. Mary Catholic Parish v. Roy, could significantly reshape the relationship between the government and religious organizations—as well as the high court’s precedents on religious pluralism.
The case is a dispute between Colorado education officials on one side and the Archdiocese of Denver, local Catholic parishes, and Catholic parents on the other. (For simplicity’s sake, I’ll refer to them as the state and the plaintiffs, respectively.) Colorado is one of a growing number of states with a universal pre-K program, or UPK. Voters approved it on the ballot in 2020, state lawmakers enacted in 2021, and it went into effect in 2023.
When lawmakers enacted the UPK program, they required the Colorado Department of Education to adopt an equal-opportunity rule for participating preschool providers. The rule adopted by the department requires them to “provide eligible children an equal opportunity to enroll and receive preschool services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability.”
This requirement is problematic for some preschool providers in the state. Among them is the archdiocese, which oversees 34 Catholic preschools in Colorado. In 2023, the archdiocese formally requested a religious exemption from the equal-opportunity rule to allow it to “admit only families who agree with the Catholic Church’s teachings, including on gender and sexuality,” according to the parish’s petition for review. Colorado education officials denied that request, noting that the rule flowed from a state law requirement and that they had no power to override the state legislature.
The plaintiffs have good reason to expect a favorable hearing at the high court. In recent years, the Supreme Court’s conservative majority has greatly expanded access to public funds and programs for religious organizations. Most free exercise clause cases have historically involved discrimination against specific religious groups, such as the Amish or Jehovah’s Witnesses. The free exercise clause, the court’s conservatives have more recently claimed, also protects religious organizations from discrimination against religion in general terms.
In the 2017 case Trinity Lutheran Church v. Comer, for example, the justices ruled that denying an “otherwise available public benefit” to a religious organization because of its religious nature violated the free exercise clause. In 2019’s Espinoza v. Montana Department of Revenue, the court held that states could also not block students from using state scholarships at private religious schools. And in 2022’s Carson v. Makin, the court applied similar reasoning when striking down a Maine law that restricted its tuition assistance program to “nonsectarian” schools.
The plaintiffs argued that Colorado discriminated against them in this situation by declining to grant them an exemption from the state’s equal-opportunity rule. “Here, there is no question that the parish preschools are otherwise eligible for UPK funding,” they told the justices in their petition, quoting from Carson. “And there is no question that those preschools have been excluded from that benefit ‘because of their religious exercise’—namely, their religiously motivated policies related to sex and gender. So, under Carson, the exclusion should have been ‘subjected to the strictest scrutiny.’”
Not so, says Colorado. In the lower courts, the state countered by claiming that there was no discrimination at all. “Carson does not apply to this case because UPK does not exclude religious schools,” they told the justices in their reply brief. “Indeed, UPK welcomes them in a program where public funding turns not on providers’ secular or religious character, but instead on providers’ compliance with UPK’s equal-opportunity requirements.”
While the plaintiffs say that the rule is an affront to American religious pluralism, the state implicitly disagreed. “UPK’s equal-opportunity requirements,” Colorado explained, “ensure that all Colorado parents—Catholic parents as well as same-sex parents—know that their children will not be turned away, because of their protected-class status, from the publicly funded preschool that best meets their families’ needs.”
Colorado also pointed to language in the court’s recent ruling in Mahmoud v. Taylor, which involved religious parents’ opt-outs to LGBTQ-related materials, that explained that “the government is generally free to place incidental burdens on religious exercise so long as it does so pursuant to a neutral policy that is generally applicable.” That phrasing refers to the Supreme Court’s 1990 ruling in Employment Division v. Smith, which represents a major hurdle in this case for the plaintiffs.
Smith involved two Native American men who alleged that the state of Oregon had infringed upon the First Amendment’s free exercise clause by denying them unemployment benefits for using peyote, which has spiritual significance for some tribal nations. The Supreme Court rejected their claim, instead holding that the free exercise clause could not be invoked by itself to challenge what the court described as “neutral laws of general applicability.”
Justice Antonin Scalia, writing for the court, noted that the state’s ban on illegal drug use was not aimed at punishing a specific religious act, but rather applied to all people equally. If Americans could invoke religious beliefs to exclude themselves from such laws, Scalia warned while quoting precedent, the effect “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
The high court’s ruling prompted Congress to enact the Religious Freedom Restoration Act of 1993, or RFRA, which created a statutory pathway to challenge free exercise clause violations by the federal government in federal court. But the Supreme Court struck down provisions of RFRA that sought to extend its scope to actions by state governments on federalism grounds in a 1997 case, so RFRA does not affect Colorado’s actions here.
As I’ve noted before, conservative judges and legal scholars have frequently criticized the Smith ruling for constraining free-exercise challenges. That makes it something of an outlier for the court’s conservative majority, who often invoke Scalia’s writings on statutory and constitutional interpretation as a lodestar.
The closest that the court’s conservatives came to overturning Smith so far was in the 2021 case Fulton v. City of Philadelphia, which involved Catholic social services programs and adoptions to same-sex couples. Justice Amy Coney Barrett wrote a concurring opinion, joined by Justice Brett Kavanaugh, that criticized Smith’s approach while also arguing against what would replace it, at least in the view of that case’s plaintiffs.
“I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime,” Barrett explained, “particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced.” She suggested that there would be “a number of issues to work through if Smith were overruled,” and—crucially—concluded it was not necessary in Fulton because Smith did not actually apply.
In their petition, the plaintiffs asked the Supreme Court to revisit whether Smith should be overturned, but the court declined to do so when agreeing to hear the case. Instead, the justices limited the questions presented to two other ones raised: whether “proving a lack of general applicability under [Smith] requires showing unfettered discretion or categorical exemptions for identical secular conduct,” and whether “[Carson] displaces the rule of [Smith] only when the government explicitly excludes religious people and institutions.”
The Tenth Circuit Court of Appeals, for its part, declined to apply Carson at all because the state did not make a practice of treating religious schools differently from secular ones. “The Department did not exclude faith-based preschools from participating in UPK,” the three-judge panel explained. “Indeed, they welcomed and actively solicited their participation. The only relevant limitation on any preschool’s participation is the nondiscrimination requirement, which applies to all preschools regardless of whether they are religious or secular.”
More importantly, as the state noted, “Colorado’s law, as written and as implemented, does not allow for any exceptions from its equal-opportunity requirements.” Since there are no exceptions, the state continued, Smith applies because the law is neutral and generally applicable. The plaintiffs tried to circumvent that point by emphasizing a Colorado official’s testimony that the state might consider exemptions if a preschool requested a preference for “gender-nonconforming children” or “children of color from historically underserved areas.” That willingness, the plaintiffs claimed, meant that the law wasn’t as ironclad as the state had averred.
But the Tenth Circuit put little stock in this argument or the official’s testimony. The official in question, the court noted, was responding to hypothetical questions and still noted that the preferences could only be given “as long as there wasn’t discrimination that was aligned to the [non]discrimination provision.” No such exemptions had ever been given, the panel noted, and concluding otherwise “would require that we invert a clear reading of the Department’s regulations based not on their language or operation, but a series of hypotheticals posed unexpectedly to one witness at trial.”
It is no surprise that the court’s conservative majority agreed to hear this case. The justices have a long history of second-guessing Colorado’s antidiscrimination laws and policies, dating back to the Masterpiece Cakeshop dispute over a baker’s refusal to bake a wedding cake for a same-sex couple in 2012. In 2018, the court concluded that the state’s Civil Rights Commission had abandoned neutrality when some of its members criticized the baker’s religious beliefs. Three years ago, in 303 Creative v. Elenis, the court also ruled in favor of a Christian web designer who sued the commission so she could deny services to hypothetical same-sex couples on free speech grounds.
Indeed, the plaintiffs’ filings play into the conservative justices’ preconceived notions about allegedly defiant lower courts and allegedly bigoted state officials. They describe Colorado’s approach to the equal-opportunity rule as a “thumbing of its nose at the rule of Trinity Lutheran, Espinoza, and Carson” and claim the state is intentionally excluding “those with traditional religious beliefs about marriage,” which will likely resonate with at least some of the court’s conservative justices.
“This Court promised in Obergefell that religious groups would be protected when they dissent from secular orthodoxies about marriage and sexuality,” the plaintiffs argued in their petition, referring to the landmark 2015 ruling on marriage equality. “The Free Exercise Clause simply cannot do that important work—which this Court has described as ‘at the heart of our pluralistic society’—if it can be so easily evaded.”
There is a certain amount of irony in these appeals to American pluralism. To rule in the plaintiffs’ favor, the justices would have to conclude that a state cannot require UPK providers to provide their services to all Coloradoans equally, even when it requires providers to each operate according to the same rules. What could be more hostile to a pluralistic society than that?
