Colorado can’t promise preschool choice and exclude Catholic schools
The justices will decide whether Colorado can exclude Catholic preschools while allowing other providers to limit admissions to particular groups.
Colorado should not shut Catholic preschools out of family choice. The Supreme Court will hear St. Mary Catholic Parish, Littleton, Colorado, et al. v. Lisa Roy, executive director of the Colorado Department of Early Childhood, No. 25-581, on Tuesday, November 3, 2026. On October 23, 2026, ADF wrote: “Three Coloradans ADF represented at the Supreme Court, defending their First Amendment right to speak or act in alignment with their beliefs. The results? First Amendment: 3, Colorado: 0.”
Benchmark’s case summary says St. Mary Catholic Parish and other petitioners were excluded because their admissions favored families who support Catholic beliefs. The Supreme Court docket lists the Tenth Circuit’s decision date as September 30, 2025. The petition says the Tenth Circuit held that Colorado’s secular exemptions and discretion did not undermine general applicability under Employment Division v. Smith, and concluded Carson v. Makin did not apply because Colorado had not excluded the schools “on the explicit basis” of religion. The petition describes the circuit disagreement as a “7-4 split” over which exemptions and forms of discretion undermine general applicability. On April 20, 2026, the Supreme Court granted review limited to the petition’s first and second questions1. The Supreme Court Case Tracker says the ruling could affect Catholic preschools and families seeking publicly funded preschool, and could shape participation rules for religious providers. The tracker expects a decision by late June 2027. Who gets to choose a child’s religious education: parents or state officials?
“Three Coloradans ADF represented at the Supreme Court, defending their First Amendment right to speak or act in alignment with their beliefs.”
Colorado’s exemptions expose its selective rule
The petition describes a program that “pays for families to send their children to the preschool of their choice, public or private.” Participation requires an “equal opportunity” to enroll regardless of characteristics including religious affiliation, sexual orientation and gender identity2.
Yet the petition identifies exceptions allowing preschools to serve only children of color, gender-nonconforming children, the LGBTQ community, low-income families or children with disabilities2. Colorado therefore accommodates admissions tailored to particular communities. Catholic families should not lose access because their chosen school builds its community around Catholic beliefs.
The Supreme Court will test Colorado’s rule
The first asks whether challenging a rule’s general applicability under Employment Division v. Smith requires showing unfettered discretion or categorical exemptions for identical secular conduct. The second asks whether Carson v. Makin displaces Smith only when government explicitly excludes religious people and institutions2.
The Court should reject a distinction that lets officials penalize religious practice without expressly naming religion as the reason. A Catholic preschool’s admissions policy is where its convictions become a decision about the community it serves. Religious freedom must protect that practice, not merely permission to keep a Catholic name.
Colorado’s equal-access defense leaves exemptions
The equal-access defense leaves the exemptions unanswered The Tenth Circuit’s defense, as summarized by Benchmark, was that Colorado’s sexual-orientation and gender-identity rules “applied neutrally to all funded preschools, served equal access, and did not impair the schools’ ability to teach their beliefs.”2
Permission to teach Catholic doctrine does not answer whether a school may organize admissions around it. And calling a rule neutral does not explain the exceptions already built into it. The justices should require an answer to that comparison: why accommodate secular admissions preferences while excluding these Catholic schools? Parents need a usable school choice, not permission to select a religious school only after officials remake its admissions.
The Court should protect family choice
For a parent choosing St. Mary, the question is whether public support can follow the child to a school that remains Catholic in practice.
Families should hold Colorado officials to a direct answer: will they accommodate religious admissions on equal terms with the secular exceptions? The Supreme Court should reject this exclusion and protect parents’ ability to choose a Catholic preschool without requiring that school to surrender the convictions those parents chose it for.
Sources
FAMILY BRIEF The news and network for the American family.
