Supreme Court likely to uphold religious freedom in education in Colorado
The Supreme Court heard arguments on November 3, 2026, in a challenge to Colorado’s exclusion of two Catholic preschools from its universal preschool program. The preschools and parents argue that the program’s nondiscrimination requirement burdens their First Amendment rights by requiring acceptance of families whose beliefs conflict with Catholic teaching. Lower courts ruled against the Catholic plaintiffs, finding that the program’s requirement was neutral toward religion and generally applicable. The Court’s questions focused on how religious exemptions under Employment Division v. Smith interact with the protections recognized in Carson v. Makin; the author argues the case could significantly affect religious liberty and parental choice in education.
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The Supreme Court heard arguments on November 3 in St. Mary Catholic Parish, Littleton v. Roy, a challenge to Colorado’s exclusion of Catholic preschools from its publicly funded universal preschool program. The article’s author predicts the Court is likely to side with the preschools, but the case remains undecided. 1
Colorado’s voluntary universal preschool program, adopted in 2022, reimburses providers for offering eligible children at least 15 hours of preschool a week. Participation requires providers to give children an equal opportunity to enroll regardless of characteristics including sexual orientation and gender identity. 1
Two Catholic preschools challenged their exclusion after declining to accept the condition, which they said conflicted with Church teaching. The challenge was brought by parish and preschool officials and parents who wanted to enroll their children; one of the preschools has since closed. A federal trial court ruled against them, and the Tenth Circuit unanimously affirmed, finding that the requirement was neutral toward religion and generally applicable. 1
The Court’s stated questions concern when a law that burdens religious practice is not generally applicable under Employment Division v. Smith, and whether Carson v. Makin changed the rule in cases where the government does not explicitly exclude religious people or institutions. The Court did not take up a separate question about whether to overturn Smith, although that precedent featured repeatedly in oral argument. 1
The article describes Smith as holding that a religion-neutral, generally applicable law can burden religious practice without requiring the government to meet the strictest level of constitutional review. It contrasts that decision with Carson, which struck down Maine’s exclusion of religious schools from a tuition-assistance program. 1
Several justices questioned whether Colorado’s enrollment condition effectively pushes religious schools out of the program. Justice Amy Coney Barrett asked the state to explain the difference between expressly excluding Catholic, evangelical, or Orthodox Jewish schools and imposing a condition those schools could not accept. 1
Justice Brett Kavanaugh suggested that the state could accommodate the Catholic preschools while allowing families to choose among more than 2,000 other participating providers. He also questioned why the state permitted some other enrollment criteria but not the Catholic schools’ restriction. Justice Samuel Alito referred to Colorado’s record in other religious-liberty cases. 1
Justices Ketanji Brown Jackson and Elena Kagan, by contrast, challenged the preschools’ position. Jackson characterized it as seeking a “special rule” allowing them to reject students based on sexual orientation or gender identity; Kagan questioned whether the schools were asking to be treated better than others. 1
The article places the case alongside Trinity Lutheran, Espinoza, and Carson, Supreme Court decisions limiting governments’ ability to exclude religious institutions from public benefits. It also cites Masterpiece Cakeshop, 303 Creative, and Chiles as decisions involving Colorado and religious-liberty claims. 1
Based on the justices’ questions and those precedents, author Charles J. Russo argues that the Court appears inclined to rule for the Catholic preschools. That is the article’s forecast, not a decision by the Court; Russo says a ruling is expected near the end of the term, in late June or early July. 1
Religious liberty should guide public funding of education
Religious liberty should be a governing principle in public education funding because parents have the primary responsibility for their children’s education and should not be forced to choose between public support and schooling consistent with their convictions. In Catholic teaching, this does not mean the state must teach religion or finance religious instruction as such. It means that public policy should respect parental choice and apply distributive justice fairly, including when families choose schools with a religious character. The sources support that principle, though they do not establish one single funding mechanism for every country or circumstance.
The Catholic case begins with the parents, not with a preferred funding formula. The USCCB states that parents are their children’s “first and primary teachers,” have a fundamental right to choose a school corresponding to their convictions, and should have concrete conditions that make the right real. It connects that principle to public resources: subsidies should be arranged so that parents can genuinely choose according to conscience, rather than merely possess a formal right they cannot afford to exercise.
Pope Pius XI makes a related argument in Divini Illius Magistri. In a society with differing religious beliefs, he says, the state need not assume that only neutral or mixed schools can serve the public. Instead, it should leave room for the initiative of the family and the Church, while providing assistance as justice requires. He points to aid distributed among the schools families seek as one way of respecting parental rights and distributive justice.
“In such a case it becomes the duty of the State, indeed it is the easier and more reasonable method of procedure, to leave free scope to the initiative of the Church and the family, while giving them such assistance as justice demands.”
The phrase “as justice demands” matters. Pius XI is not saying that every school must receive identical funding in every circumstance, or prescribing a particular program. He is saying that religious diversity does not, by itself, justify excluding families or schools from fair assistance. The governing concern is whether public arrangements respect the family’s educational role and distribute support justly.
A key distinction is between funding education for a legitimate public purpose and the state directing or imposing religious teaching. In an 1881 argument, Isaac Hecker proposed that public support could cover instruction the state reasonably requires for civic purposes, while religious instruction remains outside the state’s proper role and is supported voluntarily. He argued that this could permit public, denominational, and other schools to stand fairly before the state without making government the sponsor of a religion.
That proposal is a historical argument, not itself a binding Catholic rule. It is useful because it illustrates one way Catholics have reasoned about the balance: public authority may have an interest in education, but it should not use that interest to impose a religious outlook or to punish parents for choosing a religious school. Hecker’s specific proposal—public reimbursement only for certain instruction—is not the only policy model established by the supplied sources.
The same distinction helps prevent a misunderstanding of “religious liberty” in this debate. It does not require the state to adopt Catholic teaching as its own. Rather, it requires that families of different convictions not be disadvantaged simply because they seek education in keeping with those convictions. Pius XI’s reference to assistance for the different schools demanded by families supports that principle, while leaving the details of implementation to particular circumstances.
The case for religious liberty in funding is also a case against making one educational choice the only practically supported option. If parents are taxed to support public provision but cannot access meaningful assistance when they choose another suitable school, their formal freedom may be limited in practice. Hecker argued that a fair system should not impose an unfair burden on families educating their children elsewhere, while also insisting that the state’s contribution should be limited to its legitimate educational purpose.
The USCCB applies this reasoning in support of school-choice legislation, arguing that public resources should help parents choose among public, home, and private education, including religious schools. It also summarizes Supreme Court decisions as protecting access to certain forms of public assistance without discrimination based on a school’s religious status or religious use of funds. That is the USCCB’s account of the legal background and its policy argument; it does not, by itself, settle every legal or practical question about a particular funding program.
“Religious liberty should guide public funding of education” is therefore a sound Catholic principle if it means that funding policy should respect parents’ consciences, preserve real educational choice, and treat families and schools fairly. It does not mean that every religious school is automatically entitled to every public benefit, or that government must fund religious formation as such. The supplied sources establish the importance of parental choice and assistance according to justice, but they do not specify a universal funding formula or resolve every question about eligibility, accountability, or the design of public programs.
The central test is whether public policy serves education without coercing conscience: it should neither compel families to accept an educational setting contrary to their convictions nor exclude them from fair assistance merely because their chosen school is religious. That is the strongest conclusion supported by the Catholic teaching and arguments in the supplied sources.