Supreme Court hears Catholic preschools’ challenge to Colorado’s universal preschool funding condition

The U.S. Supreme Court heard argument Tuesday, Nov. 3, 2026, in St. Mary Catholic Parish v. Roy, No. 25-581, a challenge by Catholic preschools to a condition Colorado attaches to public money in its universal preschool program. A decision is pending; the docket lists none.¹²

Colorado law requires participating preschools to give children “an equal opportunity to enroll and receive services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability,” as those apply to the child or family.³

The questions

The court agreed April 20, 2026, to decide two questions. First, “Whether proving a lack of general applicability under Employment Division v. Smith requires showing unfettered discretion or categorical exemptions for identical secular conduct.” Second, “Whether Carson v. Makin displaces the rule of Employment Division v. Smith only when the government explicitly excludes religious people and institutions.” The grant excluded a third question: whether to overrule Smith.⁴²

The lower courts

After a trial, U.S. District Judge John L. Kane ruled June 4, 2024, that the religious-affiliation part of the requirement “is not generally applicable as the Department has applied it” and failed strict scrutiny, the most demanding level of constitutional review. He found the sexual-orientation and gender-identity parts “are neutral and generally applicable” dismissed some claims as moot and ruled for the state on the rest.³ The 10th U.S. Circuit Court of Appeals affirmed Sept. 30, 2025, in an opinion by Judge Federico.⁵⁶ The petitioners’ summary says the panel applied Smith and held Carson inapplicable because the exclusion was not “on the explicit basis” of religion.⁴

What the lawyers argued

Nicholas Reaves, for the parishes, said the schools “ask all families who enroll to be open to and supportive of the church’s teachings” and that “The Tenth Circuit was wrong to cabin” precedent reaffirmed in Carson to explicit religious exclusions. He said, “this is not a zero-sum game.”¹

Principal Deputy Solicitor General Sarah Harris, supporting the parishes, described “two main paths to reversal”: strict scrutiny for benefit programs conditioned on giving up lawful religious exercise, or a finding that Colorado’s program is not generally applicable.¹

Colorado Deputy Solicitor General Helen Norton said of religious preschools, “The only thing Colorado asks is that they comply with the same conditions that every publicly funded preschool must meet, religious and secular alike.” She said faith-based preschools “remain free to teach their religious beliefs.” She said the program, Universal Preschool or UPK, “is neutral towards religion” and that “UPK’s equal opportunity requirements are generally applicable.”¹

What the justices asked

These exchanges are a selection from the 134-page transcript, listed by seniority. A question at argument is not a vote.¹

• Chief Justice John Roberts told Reaves the earlier laws “expressly discriminated against religious schools on its face.” He asked Norton “in what way you think this is different than Carson.”¹
• Justice Clarence Thomas asked Reaves if the case was “on all fours with Carson, or would we have to extend Carson?” He told Norton that Espinoza and Carson did not cite Smith and asked, “Why would we do that in this case?”¹
• Justice Samuel Alito asked Reaves about a hypothetical rule requiring pre-K schools to take students whose parents reject the view that marriage is between a man and a woman, and whether it was “conceivable that the lawmakers would not understand what the effect of this would be.”¹
• Justice Sonia Sotomayor, speaking of same-sex parents choosing a school, told Reaves, “that should be their choice, not your choice, to exclude them.”¹
• Justice Elena Kagan, speaking of religious institutions, told Reaves, “The principle at issue here is, do you have to treat them better?”¹
• Justice Neil Gorsuch told Harris he was struggling to see how strict scrutiny would be “a sea change” when federal law already requires it of the federal government.¹
• Justice Brett Kavanaugh asked Reaves to explain what he said the respondents’ brief and some amicus briefs raise as an anomaly: “imposing greater First Amendment scrutiny on a benefits program than you are on an outright ban on the religious conduct.” He asked Norton, “Why not seek the win/win?”¹
• Justice Amy Coney Barrett asked Norton how excluding religious schools differs from “choosing to impose a condition that you know that those schools will be unable to agree to.”¹
• Justice Ketanji Brown Jackson asked Reaves, “why is it discrimination if the religious schools say we don’t want to follow that?”¹

What the records do not show

• We could not open the 10th Circuit’s opinion, 154 F.4th 752. Its result comes from the judgment and docket entry; its reasoning here comes only from the petitioners’ summary.
• We did not open the merits briefs; each side’s position comes from its lawyers’ argument.
• The docket gives no decision date.