Supreme Court case could test religious schools’ access to public preschool funds
The Supreme Court is preparing to hear a dispute over whether Colorado may condition access to a publicly funded preschool program on compliance with nondiscrimination rules that Catholic preschools say conflict with their religious policies.
The case, St. Mary Catholic Parish in Littleton, et al. v. Lisa Roy, et al., No. 25-581, is scheduled for oral argument on November 3, 2026. The justices granted review on April 20, 2026, limited to two questions involving the Free Exercise Clause framework from Employment Division v. Smith and the public-benefit analysis in Carson v. Makin.
The next immediate milestone is Colorado’s merits brief, due August 17, 2026. That is a filing deadline, not a decision date. The Court has not ruled on the merits, and no nationwide rule has changed.
What changed in the case
The Supreme Court docket shows that the petitioners filed their merits brief on June 25, 2026. On August 11, the Court set oral argument for November 3. Colorado’s response brief is due August 17 under the schedule approved by the Court.
The case follows a September 30, 2025, decision by the U.S. Court of Appeals for the Tenth Circuit. The Supreme Court agreed to review only the first two questions presented by the petition; it did not grant review on every issue the petitioners raised.
How Colorado’s preschool program works
Colorado’s Universal Preschool program is designed to provide voluntary preschool services through a mixed delivery system that includes public, private and faith-based providers. Public funding follows eligible children to participating providers selected by families.
The program includes an equal-opportunity requirement. The petitioners’ merits brief quotes the rule as requiring participating providers to give eligible children an equal opportunity to enroll and receive preschool services regardless of factors including race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level or disability.
Colorado’s position, as reported by The Associated Press and reflected in the lower-court record, is that religious schools may participate if they comply with the same nondiscrimination conditions as other providers. The state has argued that preferences involving factors such as income or disability serve the program’s goals and do not amount to comparable religious exemptions.
What the Catholic preschools argue
St. Mary Catholic Parish, the Archdiocese of Denver and other petitioners say their religious practices require them to communicate and apply Catholic teachings concerning sex, marriage and gender identity. Their June 25 merits brief says the program’s enrollment conditions conflict with those practices.
The petitioners argue that Colorado is conditioning access to a generally available public benefit on abandoning religious exercise. They rely heavily on Carson v. Makin, the 2022 decision involving Maine’s tuition-assistance program, as well as other Free Exercise Clause precedents.
They also argue that Colorado’s policy is not generally applicable under Smith. Their filing points to what they characterize as secular enrollment preferences and exemptions, including provisions involving income and disability, as well as the former treatment of congregation preferences. Those are arguments advanced by the petitioners, not findings by the Supreme Court.
What Colorado and the lower courts say
Colorado’s position is that the state is enforcing a neutral, generally applicable equal-opportunity condition rather than targeting religious schools. The state argues that providers are not excluded because they are religious; they are required to follow the same enrollment rule when they seek public funding.
The Tenth Circuit distinguished Carson because religious schools were not categorically barred from Colorado’s preschool program and the rule did not expressly exclude providers based on religious status. The lower court also rejected the petitioners’ arguments that the program’s treatment of income- and disability-related preferences made the rule not generally applicable.
The appellate court did find a problem with the religious-affiliation aspect of the program while Colorado retained a congregation preference. According to the petitioners’ brief, Colorado later amended its regulations to remove that preference and argued that the change eliminated the basis for the injunction. The Supreme Court’s review will address the legal questions identified in its April 20 order, not simply repeat the lower court’s factual analysis.
Why the distinction between Smith and Carson matters
Under Smith, a neutral and generally applicable law that incidentally burdens religious practice generally receives deferential review. The dispute asks how courts should determine whether a rule is genuinely generally applicable, including how to treat categorical or discretionary exemptions for comparable secular conduct.
Carson addresses a different question: whether a state may exclude religious participants from an otherwise available public benefit because of the way they exercise religion. The petitioners say Colorado’s rule functions like the benefit condition rejected in Carson, even though the rule is written in nondiscrimination terms. Colorado says the program remains open to religious providers that follow its equal-opportunity requirements.
The Court’s decision could therefore affect how judges analyze the boundary between an incidental burden imposed by a public program and a condition that pressures a religious organization to change its religious practices to receive funding.
Who could be affected
The ruling could matter to religious schools and child-care providers that seek public funding while maintaining faith-based enrollment, employment or educational policies. It could also affect state agencies administering preschool, child-care, grant and school-choice programs.
Families may see the case through competing concerns about provider choice, religious education and equal access to publicly supported services. The legal dispute concerns conditions placed on providers; the Court has not ruled that any particular family was unlawfully denied access.
What to watch next
Colorado’s merits brief is due Monday, August 17, 2026. Further amicus filings may frame the broader consequences before the November 3 argument. After briefing and argument, the justices will decide how the Free Exercise Clause applies when a state offers public funding through a program that includes religious providers but requires compliance with nondiscrimination rules.
Until the Court issues a ruling, St. Mary Catholic Parish v. Roy remains an unresolved dispute over Colorado’s program and the scope of existing religious-liberty precedents. It does not yet establish a nationwide rule for publicly funded preschool or other government benefits.
Sources
- U.S. Supreme Court docket for St. Mary Catholic Parish v. Roy
- Associated Press coverage of the case
- SCOTUSblog case analysis
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