Can Colorado Exclude Catholics From ‘Universal’ Preschool Program? Supreme Court Weighs In

The Supreme Court has agreed to hear the case of Catholic schools that have been excluded from Colorado’s Universal Preschool program due to their traditional stance on LGBTQ+ issues.

In St. Mary’s Catholic Parish v. Roy, two Catholic parishes, two Catholic parents, and the Catholic Archdiocese of Denver sued Lisa Roy, executive director of the Colorado Department of Early Childhood. Lower courts upheld the Colorado exclusion.

In seeking Supreme Court review, the plaintiffs cited Obergefell v. Hodges (2015), in which the Supreme Court redefined marriage to include same-sex couples. Yet Justice Anthony Kennedy promised in that opinion that “religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”

“This court promised in Obergefell that religious groups would be protected when they dissent from secular orthodoxies about marriage and sexuality,” the St. Mary’s parish brief notes. “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.”

A district court and the U.S. Court of Appeals for the 10th Circuit upheld Colorado’s rules, finding that the Centennial State did not explicitly discriminate against St. Mary’s for religious reasons.

Employment Division v. Smith

The case revolves around the interpretation of Employment Division v. Smith (1990), in which the Supreme Court held that a “neutral law of general applicability” does not violate the First Amendment by engaging in religious discrimination. The Supreme Court allowed Oregon to exclude a Native American man from receiving unemployment benefits because he had consumed the hallucinogen peyote, which he claimed was part of his religious practice.

Congress responded to this decision by passing the Religious Freedom Restoration Act (1993), requiring the application of strict scrutiny to laws restricting religious freedom.

Furthermore, the Supreme Court has upheld religious freedom in key cases such as Hosanna Tabor v. Equal Employment Opportunity Commission (2012), which St. Mary’s parish claims creates a new jurisprudence at odds with Smith. The church cites Mahmoud v. Taylor (2025), in noting that courts “need not ask whether the law at issue is neutral or generally applicable,” an apparent rejection of Smith.

A ‘Circuit Split’

This confusion has led to a “circuit split,” in which multiple circuit courts of appeals take dueling approaches to the law.

Four circuit courts and three state supreme courts have held that U.S. Supreme Court precedent “requires courts to assess all avenues of discretion and categories of exemptions from a law to see if any undermine the government’s asserted interest ‘in a similar way,’” St. Mary’s Parish notes.

Meanwhile, they add that two circuit courts and two state high courts “drastically narrow the general-applicability analysis, looking only for ‘unfettered’ discretion and considering only secular exemptions identical to the requested religious accommodation.”

In asking the Supreme Court to take the case, the church raises three questions: whether churches must demonstrate that states like Colorado had “unfettered discretion or categorial exemptions for identical secular conduct”; whether other precedents override Smith; and whether Smith should be overruled.

When the court granted certiorari Monday, it took up the first two questions, without considering the third—meaning that the court will not likely be overturning Smith in its entirety in this case.

Colorado Defends Excluding Catholics

For her part, Roy, the executive director of the Colorado Early Childhood Department, argues that the Centennial State’s law is clear: The program must exclude any preschool provider who discriminates against minor children or their parents because of race, religion, sex, sexual orientation, gender identity, or any other protected characteristic.

Roy’s response brief claims that the parish seeks “an exemption from this law to allow them to receive public funding while turning away preschoolers because of their, or their parents’, gender identity or sexual orientation.”

Yet the church’s brief states that Colorado would allow various exemptions to the law, and its decision to exclude the church therefore constitutes discrimination. It cites Dawn Odean, director of Colorado’s Universal Preschool program, who testified that the state could allow preschools “to admit only ‘gender-nonconforming children’ and to prioritize serving ‘children of color from historically underserved areas’ and ‘the LGBTQ community.’”

The Colorado Association of Private Schools, in a friend-of-the-court brief, writes that Colorado’s program “divides religious preschools into two classes: those that affirm the State’s pro-LGBTQ views and those that don’t.”

“The former are religious winners—they may participate in the [Universal Preschool program] and access funding,” the brief notes. “The latter are religious losers—they’re excluded from the program.”

Tyler O’Neil is senior editor at The Daily Signal and the author of two books: “Making Hate Pay: The Corruption of the Southern Poverty Law Center,” and “The Woketopus: The Dark Money Cabal Manipulating the Federal Government.”

Reprinted with permission from The Daily Signal by Tyler O’Neil.

The opinions expressed by columnists are their own and do not necessarily represent the views of AMAC or AMAC Action.