Liberty Counsel filed an amicus brief to the U.S. Supreme Court in St. Mary Catholic Parish v. Roy, a case where Colorado’s “universal” preschool program (UPK) is excluding Catholic parents and preschools from receiving state funds due to their religious convictions. 

According to Becket, the religious liberty law firm representing the plaintiffs, Colorado’s UPK promises “all Colorado families 15 hours of free preschool per week at the public or private preschool of their choice, a benefit worth about $6,000 per child.” However, to receive the state funds, preschools must sign a nondiscrimination agreement that they would not deny enrollment of LGBTQ students or children with LGBTQ parents. Two Catholic parishes and the Archdiocese of Denver refused to sign the agreement, and along with a set of parents, they challenge the UPK program contending the state is unconstitutionally excluding them from a “universal” public benefit because the Catholic schools limit enrollment to only those who abide by the Catholic faith and its teachings. The plaintiff’s note that while Colorado allows secular schools to impose their own enrollment requirements and priorities, such as low-income status, disabilities, or LGBTQ status, Catholic schools are denied a religious exemption and deemed ineligible due to their religious faith.

The case is expected to be argued in the U.S Supreme Court’s October 2026 term, with a decision to follow in 2027.

In 2025, the Tenth Circuit Court of Appeals sided with Colorado ruling the state’s nondiscrimination requirements were “neutral” and applied generally to all schools. The Tenth Circuit noted this type of government action was consistent with the SCOTUS’ 1990 Employment Division v. Smith decision, which determined that “neutral, generally applicable” laws don’t undergo the strictest of scrutiny.

In their petition, the plaintiffs posed the question if Smith should be overruled, but SCOTUS did not agree to evaluate that question and limited its review of the case to only determining whether Colorado’s rule is truly neutral.  

In the brief, Liberty Counsel critiques Smith stating that as long as laws are framed neutrally, they can then escape meaningful constitutional review even when they discriminate and exclude religious groups. 

“States are increasingly enacting nondiscrimination provisions that reflect the modern approach to sexual orientation and gender identity, a stance many religious adherents do not share,” reads the brief. “Each time such a requirement is dressed in neutral language and imposed as a condition to participate in a government program, Smith seriously hampers Free Exercise review of its exclusionary or marginalizing effect on religious objectors.”

Liberty Counsel argues that neutral laws can still burden religion even without explicit hostility. Here, the nondiscrimination rule effectively excludes the Catholic preschools unwillingly to compromise their religious beliefs about sexuality and gender. 

Yet, as the brief contends, Colorado officials knew in advance the rule would exclude certain religious schools. Before the UPK took final form, state officials convened a working group in which St. Mary Catholic Parish took part and informed the state that the sexual orientation and gender identity provisions could not be reconciled with its faith-based admissions practices. While knowing whom the rule would exclude, state officials imposed the requirement anyway, wrote Liberty Counsel.

A state that knowingly closes a public benefit program to an identifiable religious community “has done more than incidentally burden religion,” it has imposed a “religious gerrymander” on religious objectors, reads the brief.

Liberty Counsel argues that the Equal Protection Clause “provides an independent path” to challenge this kind of religious discrimination.

“Religion is a suspect class, and the free exercise of religion is a fundamental right,” wrote Liberty Counsel. “Yet state officials proceeded without change, knowing that the requirement would foreseeably exclude certain preschools from participating in the program. That is sufficient to infer discriminatory intent under the Equal Protection Clause.”

Liberty Counsel Founder and Chairman Mat Staver said, “When a state promises a ‘universal’ program but rejects a religious organization because it won’t compromise its religious doctrine, then it has become discriminatory. Since the Smith decision blocks a strict analysis in this case, the courts can then rely on the Equal Protection Clause to give this so-called ‘neutral’ law the strict scrutiny it deserves. States cannot exclude religious families or organizations from a public benefit because of their religious practice. The Tenth Circuit decision against St. Mary Catholic Parish should be reversed.”