The Supreme Court agreed Monday to take up a case that could determine whether Colorado can shut Catholic preschools out of its taxpayer-funded universal pre-K program, the latest in a string of religious liberty fights the state keeps losing at the nation's highest court.
The case, St. Mary Catholic Parish v. Roy, was brought by the Archdiocese of Denver and two Catholic preschools after Colorado barred them from participating in a program that gives children 15 hours of free weekly education. Their offense, as laid out in the petition: requiring enrolled families to support Catholic beliefs, including the Church's teachings on sex and gender.
Colorado's program is open to both public and private providers. But the state demands that every participating school guarantee enrollment without regard to "race, religious affiliation, sexual orientation, gender identity, income level, or disability." Catholic schools that ask families to affirm Church moral teaching don't clear that bar, and Colorado told them so.
What makes this case particularly pointed is the exemptions Colorado built into its own rules. The petition, filed in November, lays out the gap plainly:
"Colorado requires schools to ensure all families can enroll regardless of 'race, religious affiliation, sexual orientation, gender identity, income level, or disability,' [yet] nonetheless permits numerous exemptions from this requirement, both categorical and discretionary, allowing preschools to admit only 'children of color,' 'gender-nonconforming children,' 'the LGBTQ community,' low-income families, and children with disabilities."
In other words, a preschool that serves only gender-nonconforming children can participate. A preschool that serves only the LGBTQ community can participate. A preschool that limits enrollment to children of color can participate. But a Catholic school that asks families to share Catholic beliefs about marriage and human sexuality cannot.
That is not a neutral rule applied evenly. It is a system of selective enforcement, one that carves out space for virtually every identity-based mission except a religious one.
The families and schools are represented by the Becket Fund for Religious Liberty, the same firm that has beaten Colorado at the Supreme Court before. Nicholas Reaves, Becket's senior counsel on the case, framed the state's conduct in blunt terms:
"Colorado promised free preschool for all, then slammed the door on families who chose a religious education for their children."
Reaves went further in comments reported by the Washington Examiner, saying: "But what they've said is, 'We don't like your beliefs, Archdiocese of Denver, so your schools are out.'" He added: "There's no evidence of discrimination. They're just keeping these Catholic schools out."
Colorado has now found itself on the losing side of repeated First Amendment confrontations at the Supreme Court. Reaves noted the state has already lost three religious freedom cases before the justices. Those include 303 Creative v. Elenis and Masterpiece Cakeshop, both of which involved Colorado penalizing individuals for acting on sincere religious convictions about marriage and sexuality.
As Reaves put it: "After three losses in religious freedom cases at the Supreme Court, Colorado should know better."
This is not just a Colorado fight. The petition warns that the question at the heart of the case, whether states can exclude religious Americans from public benefits because they follow the precepts of their faith, is growing more urgent as government funding programs expand.
"[G]etting the Free Exercise Clause analysis right has only become more critical as government funding programs, especially in the education context, become ubiquitous. Enrollment in state-funded preschool programs alone reached an all time high of over 1.75 million children in 2023-24."
That number, 1.75 million children, is the quiet engine of this case. As states pour more money into early childhood education, the question of who gets to participate becomes a question about who gets to exist in the public square. If a state can condition access to universal programs on abandoning religious teaching, the "universal" label is a lie.
The petitioners argue Colorado's exclusion "reduces access, pushing parents and children toward preschools that share the government's views on these issues and penalizing the religious schools and families who disagree," as the Washington Times reported.
Scott Elmer of the Archdiocese of Denver, in comments reported by Newsmax, said: "All we ask is for the ability to offer families who choose a Catholic education the same access to free preschool services that's available at thousands of other preschools across Colorado."
Before reaching the Supreme Court, the case went through federal district court and the Tenth Circuit Court of Appeals, both of which upheld Colorado's rules. The lower courts backed the state's position that its nondiscrimination requirements were neutral and generally applicable.
The Supreme Court's decision to grant certiorari signals that at least four justices see a question worth answering. Fox News reported that the case is expected to address whether a state can require a religious institution to set aside its core tenets to participate in a state-funded program.
The justices said they will not use this case to overturn Employment Division v. Smith, the 1990 precedent governing free exercise claims. But they will examine how courts should determine whether a law is truly neutral and generally applicable, or whether it discriminates against religion in practice, even if it appears neutral on paper.
Arguments are expected in fall 2026, with a decision likely by June 2027, Just the News reported.
Colorado's track record on these issues should concern any state official paying attention. The state has now been hauled before the Supreme Court on religious liberty grounds multiple times, and keeps coming back for more.
Just this past March, the Court sided 8-1 with a Christian mental health counselor who challenged Colorado's ban on "conversion therapy," finding that the law regulated her speech "based on viewpoint." That was not a close call. Eight justices agreed Colorado had crossed the line.
The state's approach to religious liberty cases follows a pattern: pass a rule that appears neutral, enforce it selectively against people of faith, lose at the Supreme Court, and then find a new context in which to try the same thing. The preschool program is the latest vehicle, but the impulse is the same.
Meanwhile, fights over parental rights and religious convictions in education are playing out across the country, from California school districts to Colorado pre-K classrooms. The common thread: government actors who treat faith-based institutions as second-class participants in public life.
Colorado's defense in this case rests on the claim that its nondiscrimination rules apply equally. The state has argued, as Fox News reported, that "all participating providers, whether religious or secular, must ensure that children have equal opportunity to enroll in and receive preschool services" regardless of protected characteristics.
But the petition's list of exemptions undercuts that argument. If "equal opportunity" is the standard, why do preschools serving only the LGBTQ community or only children of color get a pass? The rule is not neutral. It is selective, and the selections track neatly with progressive ideological priorities.
Reaves expressed confidence in the outcome: "The Supreme Court has repeatedly held that states cannot exclude families from government benefits because of their faith. We're confident the Court will say the same thing here and put a stop to Colorado's no-Catholics-need-apply rules."
The case also arrives at a moment when legal protections for churches and Christian institutions remain a live issue across multiple fronts, from worship disruptions to funding exclusions. And as faith continues to intersect with public policy, the Court's ruling could set the terms for how far states can go in conditioning public benefits on ideological conformity.
Eric Rassbach of Becket posted on X when the Court announced its decision to take the case, writing: "The Supreme Court just granted cert in a @becketfund case that will decide whether states can exclude religious Americans from public benefits simply because they are following the precepts of their faith."
That is the question. And Colorado, having lost this argument in different forms at least three times already, has chosen to make the Court answer it again.
A state that offers free preschool to everyone, except families who believe what the Catholic Church teaches, is not running a universal program. It is running a loyalty test. The Supreme Court now has a chance to say so.
