As same-day voters go to the polls for the midterm elections next week, the Supreme Court will hear a major religious liberty case over a Colorado universal preschool program with implications beyond the Centennial State.
The high court will hear arguments in St. Mary Catholic Parish v. Roy on Tuesday. The case deals with Colorado’s decision to bar Catholic preschools from the state’s universal preschool programs. Colorado has defended its decision because it required the Catholic preschools to accept all families, including those who do not share Catholic beliefs, to be part of the state program. The coalition of Catholic schools argues that asking them to admit families who do not follow Catholic teachings would sacrifice their beliefs, something which they say violates their First Amendment rights.
The case marks the fourth time Colorado has been brought to the Supreme Court for allegedly violating the First Amendment in the past decade, and it could tee up a landmark ruling by the Supreme Court on religious rights with implications beyond Colorado’s universal preschool program.
Colorado back at the high court as subject of First Amendment lawsuit
The Centennial State has been on the losing end of three First Amendment cases at the Supreme Court in the last decade and could leave the high court this term with another major loss if the justices do not side with them in the St. Mary case.
“It doesn’t seem like Colorado has gotten the message,” Amanda Dixon, counsel at the Becket Fund for Religious Liberty, told the Washington Examiner. “They don’t have a great First Amendment track record at the court, but they continue to think that they have the leeway under the Constitution to exclude religious folks.”
Earlier this year, Colorado was on the losing side of an 8-1 decision in Chiles v. Salazar, which concluded the state’s law restricting the content of therapists’ speech under the guise of banning what the state misleadingly described as “conversion therapy” was clear viewpoint discrimination under the First Amendment. The state previously suffered losses on First Amendment grounds over its antidiscrimination law in 2023’s 303 Creative v. Elenis and 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Commission.
“We’ve been dealing with these cases against the state of Colorado for more than a decade … and what we’ve learned is that the state of Colorado is no respecter of the First Amendment,” Jim Campbell, chief legal counsel at ADF, who was on the winning side of the previous three cases against Colorado, told the Washington Examiner earlier this year.
Colorado doubled down in its response to the Chiles ruling. State Attorney General Phil Weiser called the ruling a setback but vowed the state would “continue to stand up for care grounded in science and for the rights of all children to grow up safe, supported, and respected,” framing the ruling as an attack on LGBT healthcare. Weiser, a Democrat, is also heavily favored to be elected Colorado’s next governor on Tuesday, when the Supreme Court hears oral arguments in St. Mary Catholic Parish v. Roy.
Catholic preschools at center of case, but other religious institutions could be affected
The case centers on whether Catholic preschools can be admitted into Colorado’s universal preschool program, but the eventual ruling could have implications for religious rights beyond the state program.
“The risk here is that if the court sided with Colorado, states would get the message that as long as it is careful and clever enough in how it excludes religious believers, that there’s no barrier to them excluding religious folks from government programs and burdening their religious exercise,” Dixon said.
Other religious groups have filed briefs supporting the Catholic preschools. The Union of Orthodox Jewish Congregations of America, and its Teach Coalition of Jewish schools, filed a brief worried that if Colorado is allowed to condition admission into the universal preschool program on sacrificing sincerely held beliefs, other public services, such as Jewish school security, could also be weaponized.
“I think for the Jewish community, and I think the religious community — the faith community — you shouldn’t have to cash in your constitutional rights to participate in government programs,” Sydney Altfield, CEO of the Teach Coalition, told the Washington Examiner earlier this year. “And if this [universal pre-K] funding, for example, in Colorado is the first thing that they’re going to condition, then think about security grants.”
“Are we going to have to choose, as a synagogue or a Jewish day school, about taking a security grant money and keeping our communities and our institutions safe versus keeping our institutions Jewish or keeping our institutions in the religious entity that we want it to be? And we shouldn’t have to be conditioned in that way,” she said.
Dixon emphasized that if the Supreme Court does side with the group of Catholic schools, the ruling would benefit not only the families at the schools but would also serve as a “great clarification and message to states that excluding religion isn’t acceptable.”
Key Supreme Court religious liberty precedent could be narrowed or tossed with eventual ruling
The 1990 Supreme Court ruling in Employment Division v. Smith found that the free exercise clause does not allow for people to violate a law as part of their religious practice, as long as the law is valid and neutral in how it is applied. The 6-3 ruling from more than 35 years ago has been a target of conservatives on the high court, and its holding could be narrowed with the St. Mary case.
The U.S. Court of Appeals for the 10th Circuit used the Employment Division ruling as its guide for siding with Colorado, making the 1990 precedent a key part of this case. While the Supreme Court did not take up the presented question asking the justices to consider overruling Employment Division, both of the presented questions it did take up with the St. Mary case invoke Employment Division. The two questions the high court will examine include how the Employment Division‘s rule on a law’s neutrality should be applied and if the 10th Circuit should have used a different precedent as its guide, rather than the Employment Division.
While opponents of Employment Division have tempered their hopes that the high court will strike down the decades-old precedent, they have expressed hope that the Supreme Court will clarify the precedent’s scope and tell lower courts to emphasize it less in their rulings in religious liberty cases.
“The Supreme Court has consistently treated Employment Division v Smith as one of the tests under the Free Exercise Clause and not the only test that is applied when a free exercise claim comes up,” Dixon said. “But lower courts like to default to Smith being the main test that comes up when a free exercise claim is raised.
“Whether or not the court overturns Smith, it could certainly help by clarifying that the Employment Division v. Smith isn’t the be-all and end-all of the Free Exercise clause,” she added.
There appear to be at least three votes on the Supreme Court to overrule Employment Division, with Justice Samuel Alito writing in a concurring opinion in the 2021 case Fulton v. City of Philadelphia that the 1990 ruling was “ripe for reexamination” and should be overruled. Justices Clarence Thomas and Neil Gorsuch joined Alito’s 2021 opinion calling for Employment Division to be overruled. The St. Mary case could present another chance for some justices to express their desire to overrule Employment Division or for the high court to finally strike down the 1990 ruling.
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The Supreme Court will hear oral arguments in St. Mary Catholic Parish v. Roy at 10 a.m. on Nov. 3.
The high court’s ruling in St. Mary Catholic Parish v. Roy is expected as soon as early 2027 and as late as by the end of June 2027, when the Supreme Court’s current term is scheduled to conclude.