Update: Justices Appear Ready to Side With Religious Preschools in Colorado Funding Case
At Tuesday's argument in St. Mary Catholic Parish v. Roy, a majority seemed open to requiring a stricter test before Colorado can shut faith-based preschools out of its free program.
See where this is ›WASHINGTON —
The U.S. Supreme Court heard arguments Tuesday, Nov. 3, in St. Mary Catholic Parish v. Roy (No. 25-581), and a majority of the justices appeared ready to rule for two Catholic parish preschools that Colorado shut out of its free universal preschool program, SCOTUSblog reported.
See where this is ›Colorado's program, started in 2023, pays for up to 15 hours of preschool a week, and more than 2,000 preschools take part. The state requires each one to sign a nondiscrimination agreement that covers sexual orientation and gender identity. St. Mary Catholic Parish in Littleton and St. Bernadette Catholic Parish in Lakewood, joined by the Archdiocese of Denver and several parents, say the rule conflicts with their teaching on marriage and sexuality. The defendants are Lisa Roy, executive director of the Colorado Department of Early Childhood, and Dawn Odean, director of the program.
Nicholas Reaves of the Becket Fund argued for the preschools, and Sarah Harris, principal deputy solicitor general, argued for the federal government in their support. “This is not a zero-sum game,” Reaves said, according to The Christian Post. Colorado Deputy Solicitor General Helen Norton answered that “there is no evidence of any animus or hostility in this case” and that the state asks only that every publicly funded preschool meet the same conditions.
See where this is ›Much of the debate turned on Carson v. Makin, the 2022 ruling against a Maine program that excluded religious schools, and on Employment Division v. Smith (1990), which gives neutral, generally applicable laws only light review. Chief Justice John Roberts and Justices Neil Gorsuch, Samuel Alito and Amy Coney Barrett seemed most sympathetic to the preschools, SCOTUSblog reported; Barrett asked why the state could set a condition the schools could never accept. Justices Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor doubted Carson controls, and Justice Brett Kavanaugh asked why the state would not seek a “win/win.” A district court ruled against the parishes in June 2024, and a unanimous 10th Circuit panel, in an opinion by Judge Richard Federico, agreed in September 2025. The justices could set the legal test themselves or send the case back; a decision is expected next year.
