Supreme Court Hears Arguments on Catholic Preschool Exclusion from Colorado Program

The case tests how far states may go in excluding religious institutions from publicly funded programs when those institutions decline to serve all families, a question the Court has approached...

The U.S. Supreme Court heard oral arguments Tuesday in St. Mary Catholic Parish v. Roy, a case centered on Colorado's decision to bar Catholic preschools from participating in the state's universal preschool program because those schools decline to enroll families who do not follow Catholic teachings, according to Washington Examiner reporting on the November 3, 2026 session.

Colorado's universal preschool program provides publicly funded early childhood education slots to qualifying providers across the state. The state excluded Catholic preschools from participating on the grounds that the schools' admission policies, rooted in Catholic doctrine, conflict with Colorado's anti-discrimination requirements for program participants. The specific point of conflict involves families that do not conform to Catholic teachings, including LGBT families.

Justice Ketanji Brown Jackson questioned counsel for the Catholic schools coalition during oral argument, characterizing their position as a request for a "special rule" that would allow them to participate in a government-funded program while maintaining admission criteria that other participating providers are prohibited from using, according to the same Washington Examiner account of the session.

Counsel for the Catholic schools coalition argued that excluding religious institutions from a broadly available public benefit program, solely because of their religious identity and practices, violates the Free Exercise Clause of the First Amendment. The coalition's position is that Colorado cannot condition program access on a school abandoning its religious character.

Colorado's position, as reflected in the state's exclusion decision, is that the program's anti-discrimination requirements apply uniformly to all participants and that no provider, religious or secular, may use state-funded program participation to restrict enrollment on prohibited grounds. The state frames its action as a neutral policy, not targeting of religion.

The case arrives at the Court following a line of rulings in which the justices have expanded protections for religious institutions seeking access to public benefit programs. In Espinoza v. Montana Department of Revenue (2020), the Court held 5-4 that states may not exclude religious schools from scholarship programs solely because of their religious status. In Carson v. Makin (2022), the Court extended that reasoning, holding 6-3 that Maine could not bar families from using state tuition aid at religious schools that engage in religious instruction. The Court's majority reasoning in both cases drew on the view that excluding religion from a generally available program constitutes discrimination based on religious status or use.

St. Mary Catholic Parish v. Roy differs from Espinoza and Carson in one key respect argued before the Court: Colorado contends it is not excluding the schools because they are Catholic, but because their admission practices do not meet program-wide conduct requirements that apply to all providers. The schools counter that this distinction collapses in practice, because the conduct Colorado requires them to change is itself an expression of religious doctrine.

The justices' questions during argument did not reveal a clear majority position, based on the Washington Examiner's account. Justice Jackson's questioning pressed the schools on the breadth of any exemption they were seeking. Questions from other justices probed the state's line-drawing authority and whether its program requirements are genuinely neutral as applied to religious operators.

The practical stakes extend beyond Colorado. At least a dozen other states operate universal preschool or similar publicly funded early childhood programs with accompanying non-discrimination requirements. A ruling for the Catholic schools coalition could require those states to include religious providers even where admission practices conflict with state anti-discrimination law. A ruling for Colorado could allow states to exclude religious providers from such programs on conduct grounds without triggering Free Exercise scrutiny under Espinoza and Carson.

What remains unknown is how the Court will characterize the Colorado program's structure and whether it will treat the case as governed by its recent precedents or as presenting a distinct question. The full oral argument transcript is available through the Supreme Court's public records at supremecourt.gov, and the written opinions from the lower courts in this proceeding are accessible through the federal court's PACER system. A decision is expected before the Court's term concludes in June 2027.