Supreme Court takes up religious liberty, LGBTQ rights in Catholic preschool case
The U.S. Supreme Court is hearing arguments in St. Mary Catholic Parish v. Roy, a challenge to Colorado’s publicly funded preschool program. Catholic parishes, parents and the Denver Archdiocese argue that the program’s nondiscrimination requirements exclude them because their schools restrict enrollment based on families’ beliefs about same-sex relationships and gender identity. Colorado says religious preschools may participate if they comply with the requirement to admit children without discrimination based on sexual orientation or gender identity. The case tests how religious-freedom protections apply to public benefits and nondiscrimination laws, with earlier Supreme Court rulings on aid to religious schools central to the arguments.
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The Supreme Court is hearing St. Mary Catholic Parish v. Roy, a dispute over whether Colorado may require religious preschools taking part in its publicly funded preschool program to follow its nondiscrimination rules. The case pits Catholic schools’ claims of religious freedom against the state’s position that participating schools must admit children without regard to sexual orientation or gender identity. 1
Colorado’s 2023 program funds 15 hours of preschool per week and is open to public and private schools, including religious schools. Participating providers must offer children equal enrollment opportunities regardless of the race, religion, sexual orientation or gender identity of the children or their parents. 1
Two Catholic parishes, local parents and the Denver Archdiocese sued, arguing that the policy excludes Catholic preschools because they do not admit children whose parents are in same-sex relationships or are transgender. The archdiocese says its schools enroll students only from families that support Catholic beliefs, including its teachings on same-sex relationships and gender identity. 1
Colorado says it does not discriminate against religious schools: they can receive public funds if they comply with the program’s rules on sexual orientation and gender identity. The lower federal courts upheld the state’s policy, finding it neutral and generally applicable under the Supreme Court’s 1990 decision in Employment Division v. Smith. 1
The Catholic schools and their supporters argue that the state is denying religious schools access to a public benefit because of their beliefs. They rely in part on three Supreme Court rulings—Trinity Lutheran v. Comer (2017), Espinoza v. Montana Department of Revenue (2020) and Carson v. Makin (2022)—which held that states generally may not exclude religious schools from benefits offered to secular private schools. 1
The schools’ legal brief also challenges the continuing role of Smith, which generally rejects religious exemptions from neutral laws of general applicability. The article reports that the brief urges the court to overturn that framework, while also arguing that Colorado’s policy would fail even under Smith. 1
Colorado’s defense is that the same nondiscrimination condition applies to all providers seeking public funding. Steve Fenberg, who led the state Senate when the program was enacted, said its purpose was to make universal preschool available to every child. 1
Supporters of the Catholic schools, including the U.S. Conference of Catholic Bishops, argue that the state has disqualified them because of their adherence to Catholic doctrine. The bishops warn that allowing the lower-court ruling to stand could encourage governments to use ostensibly neutral rules to restrict religious organizations’ participation in publicly funded services. 1
Opponents of the schools’ position say Colorado’s law is a neutral condition of participation. Law professor Leslie Griffin warned that ruling for the schools could mean public funds would be available to organizations that discriminate or violate other laws; Michigan State law professor Frank Ravitch said the decision could affect whether publicly funded religious schools may discriminate on grounds beyond those at issue in this case. 1
The Supreme Court heard oral arguments on Nov. 3, 2026, and is expected to issue a ruling by next summer. 1
Public education funding tests religious liberty and equality
Public education funding tests religious liberty and equality because it raises two distinct questions: whether parents can choose schools consistent with conscience, and whether government may distribute education funds without unfairly excluding schools because they are religious. Catholic teaching in the supplied sources supports public aid for non-state schools when it serves a just educational purpose and respects the school’s character. It does not, by itself, settle the legal outcome of any particular U.S. court case.
The Congregation for Catholic Education frames the issue around parents’ ability to choose a suitable education for their children, rather than treating it simply as a contest between public and Catholic institutions. It says public authorities should allocate subsidies so parents are “truly free” to choose schools according to conscience, and it calls for equality for non-state schools that also respects their educational project.
The distinction between a choice on paper and a choice that families can actually exercise matters. If a family can select a religious school only by taking on an additional financial burden while still contributing to the public system, the choice may be legally available but practically constrained. The Catholic argument in these sources is that fair treatment should take account of that practical obstacle, not just the formal permission to open or attend a non-state school.
This is not a claim that every school must receive identical funding, regardless of its services or obligations. The question is whether public support is allocated fairly and whether a religious school is excluded from an otherwise available benefit simply because it carries out its education through a religious mission.
A key distinction in the historical Catholic argument is between public support for education and public support for religious teaching. Isaac Thomas Hecker argued that the state could fund the instruction it considers necessary for citizenship while leaving religious instruction to families and religious communities. He proposed distributing public support fairly among schools chosen by families, rather than limiting it to public schools. This is a nineteenth-century scholarly argument, not a binding statement of Catholic teaching, but it makes clear one way Catholics have reasoned about reconciling public funding with religious diversity.
Pius XI’s teaching is broader: where families seek different kinds of schools, the state should leave room for the initiative of the family and the Church and provide assistance “as justice demands.” He also points to financial aid for the schools families choose as compatible with distributive justice—that is, the fair allocation of public resources.
That principle does not require the state to finance every religious activity a school undertakes. It does challenge the assumption that public aid automatically becomes an establishment or endorsement of religion. The sources support a distinction between assistance directed to education and the state taking over or controlling a school’s religious mission. The precise design of a funding program—including eligibility rules, conditions, and safeguards—is not addressed in enough detail here to judge a specific program.
The question is not only whether religious schools may receive money, but whether they can receive it without having to abandon the commitments that define them. The Congregation for Catholic Education recognizes that state laws can impose choices that conflict with religious freedom and a school’s Catholic identity. It supports reasonable defense of those rights through dialogue with public authorities and recourse to the courts.
That creates a genuine tension for public policy. Governments may set educational standards and conditions for programs they fund; religious schools may object if those conditions effectively require them to act against their identity. Catholic sources do not imply that every condition is unjust, or that religious identity automatically exempts a school from all public requirements. They do insist that the school’s religious character is a relevant interest, not something the state may simply require it to set aside as the price of equal treatment.
The Catholic case in these sources is not that public schools should disappear. Hecker explicitly says public schools could continue for families who prefer them, while arguing that families choosing denominational schools should also receive fair treatment. That is his historical proposal, rather than a definitive account of Catholic doctrine, but it illustrates that the dispute can be framed as pluralism within a publicly supported education system rather than a demand to replace it.
Nor do the sources present education as merely a technical service. Hecker argues that parents’ religious convictions shape what they understand education to be, and that imposing a majority’s religious outlook on a minority would violate conscience. His writing should be read as an argument from its historical setting, not as a magisterial ruling on present-day school policy. Still, the 1998 Congregation document independently grounds the issue in the rights of parents, religious freedom, and the principle of subsidiarity—the idea that decisions should not be taken away from families and communities when they can responsibly make them themselves.
Taken together, the Catholic sources support a clear general claim: public authorities should protect parental freedom of educational choice, allocate public support justly, and respect the religious identity of non-state schools. They also support defending those rights through dialogue and, where needed, the courts.
They do not establish whether any particular preschool funding rule violates U.S. constitutional law, what conditions a specific program may impose, or how a court should resolve a specific case. Those conclusions require the facts and legal arguments of the dispute, which are not supplied here. The central Catholic test, however, is broader than whether public money reaches a religious institution: does the policy treat families and schools fairly while preserving genuine freedom of conscience and the school’s ability to carry out its educational mission?