Opinion: The Supreme Court is quietly rewriting the rules for religion and public money

On November 3, the Supreme Court heard two hours of argument in a case that got far less attention than it deserved. St. Mary Catholic Parish v. Roy asks whether Colorado violated the First Amendment by requiring every provider in its state-funded universal preschool program, religious or secular, to admit children without regard to their parents' sexual orientation or gender identity — and whether two Catholic parishes, which object to that rule on religious grounds, must be let into the program anyway. The case has been framed, not unreasonably, as a clash between religious liberty and LGBTQ equality. It is that. But it is also something narrower and more consequential: a test of how far the Court will stretch a doctrine built for one kind of law onto a very different kind of law.

A dispute over who gets into a program nearly everyone is already in

Colorado's universal preschool program, now in its third year, enrolls close to 70 percent of the state's four-year-olds through roughly 2,000 participating providers, dozens of them religious institutions that have agreed to the program's nondiscrimination terms. St. Mary Catholic Parish in Littleton and a second parish, backed by the Archdiocese of Denver and represented by the Becket Fund for Religious Liberty, sued rather than sign on, arguing that admitting children from same-sex-parent households, or expelling them later, would conflict with Catholic teaching. A federal district court and then the U.S. Court of Appeals for the Tenth Circuit sided with the state in September 2025, holding that the rule is neutral and generally applicable — it says nothing about religion and applies to every provider that wants public money. The Supreme Court granted certiorari in April and limited its review to two questions: how demanding the "general applicability" test under Employment Division v. Smith really is, and whether the Court's recent funding cases displace Smith only when a state explicitly singles out religion for exclusion.

Why the justices kept circling back to one word: neutral

Those two questions are the whole case, and the argument transcript shows the Court split almost exactly along that line. Justice Kagan pressed the point that the Court's trilogy of recent funding rulings — Trinity Lutheran v. Comer (2017), Espinoza v. Montana (2020), and Carson v. Makin (2022) — all involved states that wrote religion explicitly out of a benefit. Colorado's rule does no such thing; it bars discrimination on several grounds, religion included, and applies the same terms to a Catholic parish as to a secular daycare. Justice Alito countered that a rule can burden religious exercise even without naming it, raising hypotheticals about rules that would fall unevenly on religious practice. Justice Sotomayor asked the petitioners' lawyer, Nicholas Reaves, directly whether a Catholic school could turn away a child simply because the child's parents are gay; he said yes, if the refusal reflects sincere religious belief. Several justices, including Jackson, pressed both sides on whether the same logic could be invoked to justify excluding children by race, a hypothetical both the petitioners' counsel and the Solicitor General's office labored to distinguish from the religious-liberty claim at issue. Justice Kavanaugh, for his part, wondered aloud why the case needed a sweeping ruling at all, when a narrower fix — admitting a few dozen religious preschools while leaving the broader nondiscrimination framework intact for the other roughly 2,000 — might resolve the actual dispute in front of the Court.

What is actually at stake if "neutral" no longer means "neutral"

The reason this case matters beyond Colorado is that the theory pressed by the petitioners and the Solicitor General, 21 states, and 43 members of Congress who filed briefs on their side would not stay confined to preschools. Public money comes with conditions constantly: foster-care and adoption contracts, homeless-shelter grants, food-assistance providers, state university accreditation — countless state and federal programs attach neutral, secular conditions to the money they disburse. If any generally applicable condition becomes constitutionally suspect the moment a sincere religious objector cannot comply with it, then the "general applicability" requirement that has anchored free-exercise law since Smith stops doing real work. States would face a choice between litigating every objection case by case under strict scrutiny or writing bespoke carve-outs into every program. That is not a hypothetical slope; it is the logical structure of the argument the petitioners are making, and the Court's own precedents up to now — Carson v. Makin included — have been careful to rest on explicit exclusion of religion, not on incidental burden from an otherwise neutral rule.

Who loses if the Court goes broad, and the case for a narrower ruling

The Human Rights Campaign and the Congressional Equality Caucus, which filed in support of Colorado, warn that a ruling for the parishes would let any participating religious provider deny or revoke admission for children of LGBTQ parents, with the heaviest impact falling on families in rural counties where a single state-funded preschool may be the only practical option. That is a real and specific harm, not a rhetorical one, and it deserves more weight than it got in some of the argument's more abstract hypotheticals. At the same time, the parishes have a legitimate grievance: Colorado is using public money to run what is functionally the only universal preschool system most families can afford, and excluding religious institutions that serve the public broadly — including families of other faiths and no faith — from that system on account of a doctrinal objection to one admissions scenario is a real cost to religious pluralism, not a trivial one either.

Both of those harms are genuine, which is exactly why Kavanaugh's instinct at argument was the sound one. The Court does not need to decide, in one sweeping opinion, whether every neutral condition on every public program is now subject to strict scrutiny whenever it collides with a sincere religious objection. It could instead hold narrowly that Colorado's own administrative flexibility leaves room for an accommodation that keeps the vast majority of the program, and its nondiscrimination guarantee, intact. A decision is expected by the end of the Court's term next June. The justices should resist the temptation to use this case to finish the work the funding-conditions trilogy started. Carson v. Makin stood for the proposition that government cannot exclude religion by name. It should not be read to mean government cannot ever ask religious institutions, as a condition of taking public money meant for the general public, to serve that public on the same terms as everyone else.