On November 3, 2026 the Supreme Court will hear oral argument in the case of St. Mary Catholic Parish v. Roy. The case is an important one for religious liberty, evaluating whether a state can exclude religious organizations from publicly funded programs because those religious organizations do not comply with the program requirements that conflict with the religious beliefs of the organization.
Factual Background
The facts of the case are relatively straightforward. In 2020 Colorado voters approved a referendum to create a universal preschool program that the legislature enacted into law the next year. Colorado opted to allow both public and private organizations to participate in the program, so long as those organizations met certain standards established by the Colorado Department of Early Childhood. Those standards include a requirement that “each preschool provider provide eligible children an equal opportunity to enroll and receive preschool services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability.” Colorado regulations create two exemptions to this requirement: first, organizations can give preference to admitting lower income families over other families; and second organizations can give preference to students with disabilities over other students. The department also allows organizations to prefer a student who is “part of a specific community,” including “gender non-conforming children,” “the LGBTQ community,” or “children of color from historically underserved areas” over students who do not meet those criteria.
The parish that is suing Colorado runs a number of preschools. Employees of the preschool, as well as the parents of children enrolled in the preschool, must agree to affirm the teachings of the Catholic church. Enrolled families specifically agree to “display a positive and supportive attitude toward the Catholic Church, her teachings, her work, and the mission of the Catholic school.” This includes the Catholic church’s teachings on sexual orientation and gender identity.
Discussion
While the facts may be relatively straightforward, the law is anything but. As most people know, the First Amendment guarantees people the freedom to exercise their religion. But, in a 1990 case called Employment Division v. Smith, the Supreme Court held that a generally applicable law does not violate the First Amendment even if the law otherwise burdens religious exercise (in that case the law at issue penalized someone for using peyote as part of a religious ritual). Almost immediately after Smith was decided, complicated questions about “general applicability” and other religious exercise issues came before the court, and the court crafted exceptions to the holding in Smith to accommodate those cases.
Two recent cases that created exceptions to Smith are important to St. Mary. First, the case Fulton v City of Philadelphia held that for a law to be “generally applicable,” it must be both neutral and actually generally applied. In Fulton, the program at issue gave substantial discretion to administrators to waive various requirements that were nevertheless strictly applied to a Catholic adoption agency. The court held that fact pattern did not meet the “generally
applicable” requirement of Smith. Second, the case of Carson v. Makin held that limiting a school voucher program to only “non-sectarian” institutions violated the First Amendment. There, the Court held that excluding religious institutions from participation in a taxpayer funded program penalized those institutions on the basis of their religion, which violated the Free Exercise clause of the First Amendment. It also held that directing generally available taxpayer funds to religious institutions did not violate the First Amendment’s Establishment Clause, which prohibits Congress (and now the states) from establishing an official government religion.
In St. Mary, the Court is asked to examine two specific questions. First, whether the Fulton exemption to Smith related to discretion applies only where the discretion is unfettered, or where categorical exemptions are provided for identical secular conduct. Put another way, the question is whether the Colorado program violates the First Amendment because it allows participating organizations to privilege LGBTQ and “gender nonconforming” students, but does not allow religious organizations to privilege students who do not have those characteristics for religious reasons. Second, the Court will consider the extent to which the decision in Makin created an exception to the general rule from Smith, specifically whether Mankin applies only when governments explicitly exclude religious institutions, or if it also applies to when they are de facto excluded as well.
Importantly, the St. Mary parish had asked to court to simply overrule Smith entirely, but the court declined the invitation. So, odds are that Smith will survive for at least another year as the court wrestles with keeping it, along with the myriad exceptions (and surely more to come in the future), or replacing it with a new test.