The Supreme Court’s conservative justices appeared sympathetic on Tuesday, Nov. 3, to Catholic preschools fighting Colorado’s universal pre-K rules in St. Mary Catholic Parish v. Roy, Reuters reported. Colorado makes participating schools give kids an equal shot at a seat, whatever the sexual orientation or gender identity of the child or parents.
Justice Sonia Sotomayor, one of the court’s three liberals, was skeptical. “What you’re basically saying is, we can exclude people merely because exposure to them would cause us harm,” she told Sarah M. Harris, the Justice Department lawyer supporting the parishes, Reuters reported.
Justice Elena Kagan told Nicholas Reaves, the Becket lawyer arguing for the parishes, that a key earlier ruling stands for the idea that “you can’t treat religious institutions differently.”
“That’s not the principle that’s at issue here,” Kagan said. “The principle at issue here is: Do you have to treat them better?”
Chief Justice John Roberts also doubted that the court’s past wins for religious schools fit this case. “The law in those cases, in each of them, expressly discriminated against religious schools on its face,” Roberts told Reaves. “That’s not the case here.”
“The Archdiocese of Denver schools exist to pass on the faith to the next generation,” Reaves told the justices. “To do this, they ask all families who enroll to be open to and supportive of the Church’s teachings. Because of this sincere religious exercise, the state has denied Colorado families the ability to use universal preschool funding at Catholic schools.”
The archdiocese runs 34 preschools, and its policy asks families to back church teaching on same-sex relationships and gender identity, Reuters reported. The wire service noted the catechism says “homosexual acts are intrinsically disordered.” (That’s the catechism’s wording, not Gayety’s.)
Dan and Lisa Sheley, Catholic parents, sued alongside the parishes in 2023. They say they’ve lost more than $12,000 in pre-K funding, Gayety reported last week. Enrollment at archdiocese preschools is down 20% since the program began, and two have closed, Becket says.
Reaves noted Colorado lets schools put low-income kids and kids with disabilities first. “Colorado has flexibly interpreted the mandate to accommodate important secular interests,” he said. Justice Ketanji Brown Jackson told him that “it seems to me you’re asking for a special rule for religious schools,” one letting them skip Colorado’s condition that anyone taking the money be open to everyone.
Who Argued St. Mary Catholic Parish v. Roy
Harris, the principal deputy solicitor general, split time with Reaves on the parishes’ side, the court’s docket shows.
Helen Norton, Colorado’s deputy solicitor general, told the justices the program is “neutral towards religion.”
“Under this program, faith-based preschools remain free to teach their religious beliefs, including their beliefs about sex or gender or marriage, free to teach them while receiving public funding,” Norton said.
Two Moms, Two Dads and Colorado’s Equal Opportunity Rule
Schools in the program sign an agreement to give kids “an equal opportunity to enroll and receive preschool services” regardless of sexual orientation, gender identity and other traits, SCOTUSblog’s Amy Howe reported. GLAD Law and Lambda Legal backed the state in a brief. “A four-year-old shouldn’t lose their spot in preschool because of who their parents are,” GLAD Law’s case page says.
“Public funding carries public responsibility, and that basic contract cannot be selectively applied,” Mardi Moore, CEO of Rocky Mountain Equality, said in April, when the court took the case, Colorado Newsline reported.
10th Circuit Backed Colorado’s Pre-K Program in 2025
Colorado voters created the program with a 2020 ballot measure, and the parishes sued in 2023. After a January 2024 bench trial, a federal judge in Denver upheld the rule on sexual orientation and gender identity. The parishes won a narrower religious affiliation point, and the state then dropped its preference for church members, the 10th Circuit’s opinion says.
The appeals court affirmed on Sept. 30, 2025. “The nondiscrimination requirement exists in harmony with the First Amendment,” Judge Richard Federico wrote for a three-judge panel.
Supreme Court Ruling in Catholic Preschool Case Expected by June
Colorado leans on Employment Division v. Smith, the 1990 ruling that upheld “generally applicable” laws even when they burden religious practice, Reuters reported. On Tuesday, the conservatives seemed open to reading the Free Exercise Clause to cover some laws that burden religious groups in effect, along with laws that single them out, the wire service reported.
Republican-led states backing the parishes warned that siding with Colorado could let states “weaponize the same tactic against any religious organization that receives government funding for any public benefit program,” MS NOW reported.
The court has not ruled. Becket expects a decision by the end of June 2027.
