The U.S. Supreme Court on April 20 agreed to decide whether Colorado may decline to fund Catholic preschools.
The court granted the petition in St. Mary Catholic Parish v. Roy in an unsigned order. No justices dissented. The court did not explain its decision.
The case could help to redefine how states reconcile anti-discrimination laws with religious freedom.
Colorado’s so-called universal preschool program provides taxpayer funding for families to enroll their children at the preschool of their choice, whether public or private, according to the petition filed by the parish’s attorneys.
To participate, preschools must make sure that all families possess an “equal opportunity” to sign up regardless of religious affiliation, sexual orientation, gender identity, income level, or disability.
However, the state of Colorado allows various exemptions from this requirement that permit preschools to admit only “children of color,” “gender-nonconforming children,” “the LGBTQ community,” low-income families, and children who have disabilities, the petition states.
“But Colorado excludes Catholic preschools because they admit only families who support Catholic beliefs, including on sex and gender,” it states.
When the state created the program, it said all Colorado families could enjoy 15 hours of free preschool every week at the public or private preschool of their choice—a benefit valued at about $6,000 per child. Parents such as Dan and Lisa Sheley, who are co-petitioners, hoped to take advantage of this benefit at their parish preschool run by the Archdiocese of Denver, which is also a co-petitioner, according to a summary by the Becket Fund for Religious Liberty, a public interest law firm.
But Colorado excluded all Archdiocesan preschools from the program because those schools request that participating families be supportive of the Catholic faith. “This means Catholic families like the Sheleys must pay thousands of dollars out of pocket each year on top of their state taxes while those attending nearly 2,000 other public and private preschools receive state-funded education at the preschool of their choice,” the law firm stated.
In February 2023, the Archdiocese sought an accommodation from the state, which the state denied, saying “no provider may discriminate against children or families in violation of state statute.” The petitioners sued in August 2023 seeking a preliminary injunction. After a trial, the federal district court ruled for the state, finding that the program did not violate the First Amendment’s free exercise clause under Employment Division v. Smith (1990), according to the petition.
In Employment Division v. Smith, the Supreme Court held that the free exercise clause does not require religious exemptions from neutral, generally applicable laws even when those laws interfere with religious practices. In other words, the court found that religious exemptions are not required when a law applies equally to all.
The U.S. Court of Appeals for the 10th Circuit affirmed the state’s decision not to allow Catholic preschools to participate.
Applying the 1990 precedent, the appeals court held that Colorado’s secular exemptions and discretion “did not undermine general applicability.”
By doing this, the appeals court threw its lot in with the minority position in a circuit split regarding what kinds of exemptions and discretion are considered to undermine general applicability, the petition states.
In the petition, the petitioners asked the Supreme Court to overrule the precedent, but in its new order, the court specifically declined to take up that question.
Instead, the justices indicated that they will consider if the application of Employment Division v. Smith should be narrowed.
The justices said they would entertain arguments about general applicability under the precedent, and whether another precedent, Carson v. Makin (2022), “displaces the rule of Employment Division v. Smith only when the government explicitly excludes religious people and institutions.”
In Carson, the Supreme Court struck down as unconstitutional a Maine law that excluded families from a student aid program if they chose to send their children to religious schools.
The court held in that case that a state violates the free exercise clause when it excludes religious schools from a generally available public tuition assistance or school choice program.
Nick Reaves, senior counsel at Becket and attorney for the families and preschools, hailed the high court’s decision to take up the case.
“Colorado promised free preschool for all, then slammed the door on families who chose a religious education for their children,” Reaves said in a statement.
“The Supreme Court has repeatedly held that states cannot exclude families from government benefits because of their faith. We’re confident the Court will say the same thing here and put a stop to Colorado’s no-Catholics-need-apply rules.”
The Epoch Times reached out to the office of Colorado Attorney General Phil Weiser. No reply was received by publication time.
Weiser had urged the Supreme Court not to accept the appeal.
The 10th Circuit held that the state preschool program “affirmatively welcomes faith-based providers while allowing no exceptions from its equal-opportunity requirements,” he said in a brief.
That court found that the state law “does not allow for any exceptions from its equal-opportunity requirements,” but the petitioners “essentially ignore that holding, which vitiates the premise of their central argument,” he added.
The case is expected to be heard in the court’s next session, which begins in October.
This article by Matthew Vadum appeared April 20, 2026, in The Epoch Times.