Tomorrow, the U.S. Supreme Court will hear oral arguments in St. Mary Catholic Parish v. Roy, a case where Colorado’s “universal” preschool program is excluding Catholic parents and preschools from receiving state funds due to their religious convictions. A decision is expected before the end of June 2027 when the Supreme Court’s term concludes. 

The preschool program 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 preschool 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 state of Colorado counters that the Catholic preschools are welcome in the program but must comply with the equal opportunity requirements that apply to all publicly funded schools.

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.

SCOTUS agreed to evaluate the case to determine whether Colorado’s preschool program rule is truly neutral. 

Liberty Counsel filed an amicus brief to the U.S. Supreme Court in the case arguing 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. 

The brief contends Colorado officials knew in advance the rule would exclude certain religious schools. Before the preschool program 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.

Liberty Counsel argues when a state has knowingly closed a public benefit program to an identifiable religious community, then it has imposed a “religious gerrymander” on religious objectors. Since state officials knew of the rule’s effect and proceeded without change, there is sufficient cause to challenge the rule and show discriminatory intent, which is prohibited under the Free Exercise of Religion and the Equal Protection Clause, reads the brief.

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. Analysis under the Equal Protection Clause can 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.”