U.S. amicus in St. Mary Catholic Parish v. Roy urges clearer Free Exercise test
The U.S. government filed an amicus brief on July 2, 2026 in St. Mary Catholic Parish v. Roy—asking the Supreme Court to clarify when the First Amendment’s Free Exercise protections apply in government-funded “universal preschool” programs that attach an “equal opportunity” enrollment condition.
The Court granted review on April 20, 2026, but limited what it will decide to the specific Questions 1 and 2 presented by the petition. Those limited questions matter because they address how courts should analyze religious objections when states use public-benefits-style education funding while also requiring nondiscrimination-type participation rules.
What Colorado’s universal preschool program does
In the Court’s framing, Colorado’s program pays to help families cover preschool education, allowing parents to choose participating schools—public or private. The benefit is conditioned on schools participating in and complying with an “equal opportunity” enrollment requirement described in the case materials.
The “equal opportunity” condition—and the Catholic-preschool exclusion
According to the Supreme Court’s Questions Presented in No. 25-581, participating preschools must provide “equal opportunity” to enroll without discrimination based on specified protected characteristics, including religious affiliation. The case materials also describe Colorado’s exemptions and discretion framework as it applies to the policy.
Critically, the Questions Presented explain that Catholic preschools were excluded under the program’s rulemaking and exemptions because they admit only families who affirm Catholic beliefs, including beliefs related to sex and gender. The dispute is whether that exclusion can be reconciled with Free Exercise doctrine when religious exercise is part of how the school operates and serves families.
What the lower court did with Free Exercise doctrine
As summarized in the Questions Presented—after the case reached the Tenth Circuit and was reported at 154 F.4th 752—the court upheld the exclusion. It relied on the framework associated with Employment Division v. Smith, treating the rule as generally applicable and concluding that discretionary or categorical exemptions did not change that analysis.
The lower court also declined to apply Carson v. Makin in the way the petitioners sought, reasoning that the relevant exclusion was not “explicitly” religious.
What the U.S. amicus brief is asking the Court to clarify
The July 2 amicus brief asks the Court to clarify that Free Exercise review in public-benefits contexts should not always default to Smith. Instead, the brief argues, courts should apply the stricter public-benefits principles associated with cases like Sherbert and Carson when the government restricts access to generally available benefits based on lawful religious exercise.
In practical terms, the federal government’s argument is that courts should focus on the structure of the benefit and the condition attached to it—especially where families must choose between participating in the benefit program and engaging in otherwise lawful religious exercise.
What readers should watch next
This is still not a final Supreme Court ruling. As reflected in the SupremeCourt.gov docket materials, merits briefing continues: the petitioners’ merits materials and the joint appendix were addressed through June 25, 2026, and the respondents’ merits brief is set through August 17, 2026.
As the next round of filings arrives, readers should watch how both sides respond to the U.S. government’s argument about whether and when public-benefits-style conditions trigger a more demanding Free Exercise analysis. Whatever the Court ultimately holds, the decision could affect how states design eligibility rules for education funding and how religious schools and families evaluate the risk of losing access to public benefits tied to participation conditions.
Sources
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