Sagoh
By Joshua Dunn
November 4, 2026
For nearly a decade, Colorado has found itself locked in a recurring legal drama at the Supreme Court of the United States. Time and again, the state has entered the high court’s chambers defending its expansive anti-discrimination statutes, only to emerge on the losing side of landmark First Amendment rulings. On Tuesday, as oral arguments concluded in St. Mary Catholic Parish v. Roy, the state appeared to be walking down a familiar, perilous path.
The case—a direct challenge to Colorado’s inclusion criteria for its universal pre-K program—suggests that the Supreme Court’s conservative majority remains profoundly unconvinced by the state’s efforts to leverage civil rights mandates against religious educational institutions.
The Genesis of a Constitutional Conflict
The controversy is rooted in one of Governor Jared Polis’s signature policy achievements: the launch of a universal preschool program in 2022. Designed to provide up to 15 hours of state-funded preschool per week for every child in the state, the program was intended to be a pillar of early childhood development. To participate, private schools must agree to adhere to a strict set of nondiscrimination policies, ensuring that children are enrolled regardless of religious affiliation, sexual orientation, or gender identity.
The rub, according to the Archdiocese of Denver and several Catholic parishes, is that the state is effectively forcing religious institutions to abandon their core theological tenets to receive public funding. The plaintiffs, joined by parents who feel their children have been effectively blacklisted from the program due to their religious choices, argue that Colorado is weaponizing “nondiscrimination” to exclude institutions that refuse to conform to state-mandated social policies.
The Tenth Circuit Court of Appeals had previously ruled in favor of the state, with a panel consisting of one Obama and two Biden appointees concluding that Colorado was not targeting religion, but merely applying uniform requirements to all providers. However, the Supreme Court’s oral arguments on Tuesday painted a very different picture.
Chronology of a Mounting Legal Streak
To understand the stakes of St. Mary Catholic Parish, one must look at Colorado’s recent history in the Supreme Court—a track record of setbacks that has become a defining feature of the state’s legal identity:
- 2018: Masterpiece Cakeshop v. Colorado Civil Rights Commission – The Court ruled 7–2 that the state displayed “impermissible hostility” toward baker Jack Phillips, who declined to design a custom cake for a same-sex wedding on religious grounds.
- 2023: 303 Creative LLC v. Elenis – In a 6–3 decision, the Court held that Colorado could not use its anti-discrimination laws to compel a website designer to create content celebrating same-sex marriage, citing the First Amendment’s protection against compelled speech.
- 2025/2026: Chiles v. Salazar – The Court ruled 8–1 that state restrictions on conversion therapy were subject to “strict scrutiny,” signaling that even well-intentioned legislative goals cannot override fundamental free speech and religious liberty protections.
St. Mary Catholic Parish v. Roy now threatens to be the next chapter in this sequence, suggesting that the “Centennial State” has yet to find a constitutional middle ground that satisfies the current Court’s stringent interpretation of the Free Exercise Clause.
The “Win-Win” That Wasn’t: Justices Press the State
During the oral arguments, Justice Brett Kavanaugh emerged as a sharp critic of the state’s position. He repeatedly questioned why the conflict was even necessary, characterizing Colorado’s policy as a “would-be solution in search of a problem.”
Kavanaugh pointed out that Colorado hosts over 2,000 preschools, with only 34 being Catholic. He suggested that there was ample room for the state to satisfy its universal pre-K goals while respecting the religious liberty of those few institutions. “I’m just trying to figure out,” Kavanaugh asked, “why we’re here… why has this been provoked when there’s an ability for everyone to go to the school, a good school that’s a fit for them and respect religious rights?”
The state’s representative, Deputy Solicitor General Helen Norton, countered that preschools are not interchangeable commodities. She argued that logistical factors—such as proximity to a parent’s workplace or the availability of sibling care—make specific schools essential for specific families. For the state, the goal is “equal opportunity, not some opportunity.”
Kavanaugh was quick to dismantle this logistical defense. He noted that the state currently allows schools to prioritize students whose parents demonstrate high levels of involvement. “That,” he noted, “almost inherently discriminates against single-parent families,” suggesting the state’s commitment to “nondiscrimination” is inconsistently applied.
Examining the Legal Precedents
A primary focus of the hearing was the shadow cast by Carson v. Makin (2022), in which the Supreme Court ruled that Maine could not exclude religious schools from a tuition program simply because they provided religious instruction.
Colorado’s legal team argued that its program is distinct because it does not single out religion; they maintain that religious schools are welcome, provided they sign the nondiscrimination pledge. Chief Justice John Roberts, however, appeared skeptical of this distinction, noting that “the effect of the law in Carson is pretty much the same as the effect of the law here.” Justice Neil Gorsuch echoed this, implying that Colorado is attempting to accomplish indirectly what it is constitutionally prohibited from doing directly.
The discussion also touched upon Employment Division v. Smith (1990), which historically allowed for neutral, generally applicable laws to supersede religious practices. However, in light of more recent precedents like Tandon v. Newsom (2021), the Court has moved toward a “strict scrutiny” standard for any policy that treats secular activities more favorably than religious ones.
The justices raised pointed questions about exceptions. Justice Kavanaugh famously noted, “You can have a vegetarian school, but you can’t have a Catholic school, you can’t have a Jewish school.” Similarly, when the state defended its policy by citing the protection of specific characteristics, Justice Samuel Alito noted that Colorado’s logic could theoretically allow the state to ban religious attire, such as Muslim head coverings, under the guise of preventing “unequal status,” a position that clearly rattled the court’s sensibilities.
Implications for Religious Education and State Power
If the Supreme Court rules against Colorado, the implications will be profound. A victory for the Catholic parishes would effectively signal that states cannot condition participation in broad public benefit programs on the surrender of religious autonomy. It would solidify the precedent that religious organizations have a constitutional right to operate according to their beliefs, even when they participate in government-funded initiatives.
Conversely, a loss for the schools would embolden states to use funding eligibility as a tool for social engineering, potentially leading to a landscape where religious education is increasingly sidelined from the public square.
However, based on the tenor of the questioning, the Court seems poised to reject the notion that religious schools are "second-class citizens" in the context of state-funded education. The Justices appear to view Colorado’s rigid adherence to its nondiscrimination mandates not as a neutral application of law, but as a deliberate friction point that ignores the pluralistic reality of American education.
Conclusion
As the legal community awaits the final opinion, the atmosphere surrounding St. Mary Catholic Parish feels like a culmination of the last ten years of constitutional litigation. The state of Colorado has consistently attempted to defend its progressive policy framework against an increasingly originalist Supreme Court.
Whether the Court will provide a narrow ruling or a broad mandate regarding religious freedom in public funding remains to be seen. But one does not need to be a constitutional prophet to see the writing on the wall: the Centennial State is once again on the defensive, and the tide of the high court’s jurisprudence appears to be washing away the state’s ability to compel conformity from religious institutions.
Joshua Dunn is executive director of the Institute of American Civics at the University of Tennessee, Knoxville. The opinions expressed are those of the author and do not represent the views of the Institute of American Civics or the University of Tennessee.
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Azzam Bilal Chamdy
