Supreme Court Weighs Religious Freedom in Colorado Preschool Funding Case
The court evaluates if religious schools can access public funds despite enrollment mandates.
1The Core Legal Conflict
The Supreme Court is hearing St. Mary Catholic Parish v. Roy, which challenges Colorado’s universal preschool program. The state denies funding to Catholic preschools because they require families to adhere to Church teachings on sex and marriage. This mandate conflicts with the state’s equal opportunity enrollment requirements for all participating providers.
2The Smith Precedent Challenge
Justice Clarence Thomas questioned why the court should continue citing the 1990 Employment Division v. Smith decision. Smith established that neutral, generally applicable laws only require a rational basis for religious burdens. However, the court has spent decades narrowing this precedent, creating numerous exceptions for religious groups and institutional autonomy.
3Colorado's Enrollment Mandate
Colorado’s program provides $6,300 per child for 15 hours of weekly preschool. While the state enforces an equal opportunity mandate, it allows over 1,000 schools to use specific enrollment preferences for siblings or employees. Catholic parishes argue this selective exemption process proves the law is not truly generally applicable or neutral.
4The Carson v. Makin Influence
The petitioners rely on the court’s 2022 ruling in Carson v. Makin, which held that states cannot exclude religious schools from public benefit programs. The court previously ruled in Trinity Lutheran and Espinoza that excluding religious entities from funding based on their religious exercise violates the free exercise clause of the Constitution.
5Two Paths for Ruling
The court faces two potential routes: a narrow ruling focusing on Colorado’s specific secular exemptions, or a broader application of the Carson standard. A narrow win would be fragile, potentially leading to a cycle of state legislative maneuvering. A broader ruling would establish a durable standard for all public benefit programs.
6The Whack-a-Mole Problem
Principal Deputy Solicitor General Sarah Harris described the current legal landscape as a game of whack-a-mole. States frequently rewrite laws to exclude religious schools without explicitly using religious labels. A ruling under the Carson framework would prevent states from conditioning public benefits on the abandonment of religious exercise by private institutions.
7Defining the Legal Boundaries
The petitioners argue that the Carson rule has clear limits. It applies to public benefits for lawful conduct, not to government licensing regimes or the management of internal government operations. Justice Amy Coney Barrett noted that a mandate attached to a general operating license might not trigger the same constitutional protections.
8Strict Scrutiny Misconceptions
Justice Elena Kagan expressed concern that strict scrutiny would force courts to balance religious interests against state interests. However, Justice Neil Gorsuch clarified that strict scrutiny does not involve balancing. Instead, it requires the government to prove a compelling interest and demonstrate that the policy is narrowly tailored to that specific end.
9Disciplined Judicial Standards
Modern strict scrutiny, shaped by the Religious Freedom Restoration Act, focuses on whether the government has objectively burdened religious exercise. Courts do not weigh the value of faith against policy goals. They require the government to prove that its action is necessary to serve a permissible, narrowly defined constitutional interest.
10Evidence-Based Constitutional Review
In United States v. Hemani, the court reinforced that the government must prove its stated reasons for burdening rights are genuine. Applying this to St. Mary, the state must show that its interest in the mandate is served by applying it to the specific claimant, rather than relying on broad, generalized interests.
11Precedent and Stability
The federal government and 40 states already operate under strict scrutiny standards via RFRA equivalents. Proponents argue this is a familiar, manageable standard for courts. By contrast, the Smith regime is described as unstable and unworkable, leaving lower courts in a state of confusion regarding how to handle religious freedom claims.
12The Future of Free Exercise
The court appears poised to either overrule or significantly quarantine Smith. By grounding the decision in the original meaning of the free exercise clause, the court could solidify the protection of religious entities in public programs. This would mark a shift toward a more consistent, evidence-based approach to constitutional religious rights.