Today, the U.S. Supreme Court issued a short order agreeing to review a significant free exercise case arising from Colorado’s Universal Preschool Program, granting certiorari in St. Mary Catholic Parish in Littleton v. Roy on a narrow set of questions that will test the boundaries of religious liberty doctrine without directly confronting the foundational Smith framework itself.
The case stems from the 10th Circuit Court of Appeals’ affirmance last September of a district court decision denying injunctive relief to the Archdiocese of Denver, two Catholic parishes, and two parents seeking an exemption from Colorado’s nondiscrimination requirements. Those requirements mandate that all preschools receiving state funds 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.”
The Catholic schools argue that the statute infringes on their sincere religious belief that Catholic teaching requires them to consider the sexual orientation and gender identity of applicants and their parents before admission. The Archdiocese does not recognize same-sex relationships or transgender status, and has stated that enrolling children of same-sex parents would “likely lead to intractable conflicts.”
In its decision, the 10th Circuit found that the nondiscrimination requirement neither discriminates against religious status nor creates a system of individualized exemptions that would trigger strict scrutiny under free exercise doctrine. The panel applied rational basis review and upheld the program. The court also rejected the petitioners’ expressive association claim, finding no meaningful distinction between a preschool child’s presence and the group’s ability to advocate its viewpoint. This holding attempted to distinguish Boy Scouts of America v. Dale, where the Supreme Court had found that an openly gay scoutmaster would impair the organization’s message.
The Supreme Court’s grant, issued this morning, addresses only the first two questions presented:
First, the Court will consider whether proving a lack of general applicability under Employment Division v. Smith requires showing unfettered discretion or categorical exemptions for identical secular conduct. This question bears directly on the 10th Circuit’s analysis of Colorado’s “preference system,” a matching algorithm that allows preschools to select enrollment preferences such as for children with IEPs, Head Start participants, or children from specific geographic areas while barring any preference based on sexual orientation or gender identity. The petitioners argued this created unlawful categorical secular exceptions, but the 10th Circuit held that disability and income-level preferences are not comparable to the religious exemption being sought.
Second, the Court will examine whether Carson v. Makin displaces the Employment Division v. Smith rule only when the government explicitly excludes religious people and institutions. The petitioners contended that the nondiscrimination requirement operates as an implicit religious exclusion, since it prevents the schools from exercising what they consider a central religious practice. The 10th Circuit distinguished the Carson line of cases (Trinity Lutheran Church of Columbia, Inc. v. Comer; Espinoza v. Montana Department of Revenue; and Carson itself) on the ground that those decisions addressed laws that explicitly and categorically excluded religious institutions from generally available benefits. Colorado, by contrast, welcomed faith-based preschools into the UPK program, conditioning participation only on neutral nondiscrimination standards.
Notably, the Court declined to grant certiorari on the third question: whether Employment Division v. Smith should be overruled. That omission signals that the Court is not prepared, at least at this stage, to reconsider the watershed 1990 decision requiring generally applicable laws to satisfy only rational basis review even when they incidentally burden religious exercise. The petitioners’ brief had asked the Court to abandon the Smith framework entirely, arguing that strict scrutiny should apply whenever a law substantially burdens religious practice, irrespective of neutrality and general applicability. By declining that question, the Court has kept the Smith regime intact as the baseline standard.
The case presents the Court with a doctrinally intricate problem: how to reconcile Smith’s requirement of neutrality and general applicability with the post-Smith surge of decisions, particularly Carson and the more recent Fulton v. City of Philadelphia, that have made it increasingly difficult for governments to defend even facially neutral laws when they contain overlapping systems of exceptions or preferences. The 10th Circuit attempted to resolve this tension by holding that secular preferences unrelated to the religious practice being burdened do not defeat general applicability. The Supreme Court’s decision to take the case suggests that this reasoning may not have settled the matter.
The case is docketed as St. Mary Catholic Parish in Littleton v. Roy, No. 25-581, and oral arguments are expected sometime in the 2026-2027 term.
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