Colorado's Universal Preschool Nondiscrimination Mandate Burdens Religious Exercise and Exemplifies Government Evasion of Free Exercise Protections That Smith Enables
Source: Shawn Fleetwood. "SCOTUS To Weigh CO Program's Ban On Religious Preschools." October 30, 2026. thefederalist.com
The Gist
The author argues that Colorado is effectively shutting Catholic preschools out of a state-funded program unless they act against their beliefs about marriage and sex. He says earlier Supreme Court rulings bar states from denying public benefits because of religion, and that a 1990 precedent (Smith) has let governments sidestep those protections. He hopes the Court sides with the Catholic schools and moves toward weakening or overturning Smith.
Conclusion
The Supreme Court should rule for the Catholic plaintiffs in St. Mary Catholic Parish v. Roy, because Colorado's exclusion of religious preschools from its universal preschool program violates the Free Exercise Clause, and the case shows why Employment Division v. Smith should be curtailed or eventually overturned.
Premises
- Colorado's universal preschool program requires participating schools to sign an agreement offering equal enrollment regardless of sexual orientation and gender identity, which conflicts with the Catholic preschools' sincerely held religious beliefs about marriage and biological sex.
- The Supreme Court has held repeatedly, most recently in Carson v. Makin, that a state violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits because of their religious exercise.
- Conditioning access to the public benefit on abandoning religious beliefs penalizes religious parents and schools for choosing religiously grounded education, which imposes a heavy free-exercise burden.
- Governments and lower courts have treated Employment Division v. Smith as a default rule or free pass to burden religion, so long as a law is structured to look neutral and generally applicable, even though Smith was originally concerned with across-the-board criminal prohibitions.
- Colorado's approach is an example of governments maneuvering around the Court's decades of protections for religious exercise, and Smith keeps generating problems for religious observers in the lower courts.
- Several justices (Thomas, Alito, Gorsuch) have favored overruling Smith, and others (Barrett, Kavanaugh) acknowledge serious arguments against it, suggesting the Court may incrementally narrow Smith or give clearer guidance to lower courts.
Assumptions
- The Catholic preschools' refusal to comply is a protected exercise of religion, and the nondiscrimination agreement imposes a cognizable burden on it.
- Participation in a state-funded universal preschool program is a 'public benefit' within the meaning of Carson v. Makin and related cases.
- Colorado's requirement is functionally an exclusion of religious schools rather than a neutral condition on funding.
- Colorado's nondiscrimination interest is not compelling enough, or not narrowly tailored enough, to justify the burden.
- Lower-court misapplications of Smith are a flaw in Smith itself, not merely in how courts apply it.
- Previous Colorado losses before the Supreme Court indicate a pattern of hostility to religious believers rather than legitimate policy disagreements.