The Supreme Court found a quieter way to unravel a 35-year-old precedent

The Supreme Court did not agree to reconsider one of its own precedents when it took up St. Mary Catholic Parish v. Roy this term. The justices limited review to narrower questions about how that precedent applies. But two days after oral argument, the more consequential story is not whether a Catholic preschool in suburban Denver gets access to Colorado's public pre-K funding. It is that a majority of the Court appeared ready to reach much the same result anyway, by a different legal route — one that would leave the 1990 precedent, Employment Division v. Smith, nominally intact while draining it of most of its force. That approach, floated repeatedly during argument, deserves scrutiny independent of who wins the preschool dispute, because it would change how every state structures the strings attached to public money.

What the argument revealed

The case, argued November 3 at the Supreme Court, pits the Archdiocese of Denver and two parish preschools against Colorado's Department of Early Childhood. Colorado's universal preschool program, funded through a 2020 ballot measure, requires participating providers to sign a nondiscrimination agreement covering sexual orientation and gender identity. St. Mary and St. Bernadette parishes declined, because their preschools reserve the right to decline enrollment to children of same-sex couples, and were excluded from the program as a result. A federal district court and a unanimous panel of the 10th Circuit both sided with the state, applying Smith's rule that neutral, generally applicable laws do not trigger heightened scrutiny even when they burden religious practice.

According to the official argument transcript, the bench spent little time defending the 10th Circuit's reasoning on its own terms. Chief Justice John Roberts pressed Colorado's deputy solicitor general, Helen Norton, on why the state's program should be treated differently from the unemployment-benefits scheme the Court struck down in 1963's Sherbert v. Verner, telling her at one point that she seemed "quite anxious to bury Sherbert, perhaps as anxious as the other side is to bury Smith." Justice Neil Gorsuch raised a similar worry about what would survive of the Court's older religious-exemption cases if everything turned on proof of explicit discrimination. Justice Samuel Alito and Justice Amy Coney Barrett each pushed on whether Colorado could impose a condition it knew the parishes could not accept and still call the program neutral.

"It seems to me that you're quite anxious to bury Sherbert, perhaps as anxious as the other side is to bury Smith." — Chief Justice John Roberts, questioning Colorado's counsel at oral argument, November 3, 2026

Justice Sonia Sotomayor and Justice Ketanji Brown Jackson were the most resistant, pressing petitioners' lawyer, Nicholas Reaves of the Becket Fund, on how far a ruling for the parishes would reach — including whether it would let a religious preschool turn away children because their parents are gay, or, hypothetically, because of a child's race. Reaves said no, citing the "overriding" government interest recognized in Bob Jones University v. United States. Sotomayor was unconvinced, telling Reaves that "no matter what line of cases we follow, there will be tremendous problems and a great cost to someone." Justice Brett Kavanaugh, for his part, repeatedly asked why the dispute could not be resolved more narrowly, noting that more than 2,000 preschools already participate in Colorado's program: "Why not seek the win/win? … There's a clash of rights, obviously, the free exercise right on the one hand, the same-sex marriage right recognized in Obergefell on the other, but there are 2,000 schools."

A detour around a precedent, not a confrontation with it

The reason this matters beyond Colorado is procedural. The Court's own order granting review, recorded on the case docket, limited the grant to two of the three questions the parishes had asked it to decide — and left out their request to revisit Smith directly. That should have made this a modest case about how to apply existing doctrine. Instead, several justices gravitated toward a different vehicle entirely: the "unconstitutional conditions" logic the Court used in 2022's Carson v. Makin, which held that once a state offers a public benefit, it cannot condition that benefit on an institution forgoing religious exercise — regardless of whether the underlying rule is neutral on its face. That case, like this one, arose from a state declining to pay public funds to parents or schools; the full docket history is on file at the Court.

The distinction is not academic. Under Smith, a state loses only if it can be shown to have singled out religion for worse treatment than comparable secular conduct — a test Reaves tried to satisfy by pointing to a "catch-all" exemption in Colorado's rules that lets some secular preferences bypass the nondiscrimination requirement. Under the Carson approach several justices floated instead, a state loses simply by conditioning a public benefit on anything that conflicts with religious practice, whether or not any secular comparator exists. Georgetown law professor Stephanie Barclay, who filed a brief supporting the parishes, argued in a commentary published Thursday that the Carson route is the more durable one for religious claimants precisely because states cannot draft around it the way they can redraft exemption lists to satisfy Smith. Her analysis, and the argument itself, point toward the same conclusion: the Court may leave Smith on the books while building a parallel doctrine broad enough to make it largely beside the point.

The case for restraint is not frivolous

Colorado's defense is not merely bureaucratic stubbornness. The state's universal pre-K program, described on the Department of Early Childhood's own account of the 10th Circuit's ruling, applies its nondiscrimination rule to every one of its roughly 2,000 participating providers, religious and secular alike; it does not target Catholic schools, and dozens of religious preschools that agreed to the terms remain enrolled. Jackson's framing at argument — that Carson was meant to stop states from treating religious schools worse than secular ones, not to guarantee religious institutions an exemption that no other participant gets — is a fair reading of that 2022 opinion's actual holding, which struck down Maine's exclusion of religious schools from a tuition program, not a universal nondiscrimination condition applied evenly. Kagan's objection that the parishes are seeking a "special accommodation" unavailable to any other provider, religious or not, is likewise not a rhetorical stretch; it tracks the structure of Colorado's program as Colorado describes it.

Nor is Kavanaugh's search for a narrower path a dodge. A ruling confined to this program's specific catch-all exemption — the detail Reaves leaned on to argue the rule is not, in fact, generally applicable — would resolve the case without the sweeping doctrinal shift Barclay and others are anticipating. The post-argument analysis from SCOTUSblog noted that this narrower, Smith-compliant path remained available to the majority even as most of the argument's energy pointed elsewhere.

What comes next

A decision is not expected before the Court's term ends, likely in late June 2027, which gives states a long runway to reconsider what conditions they attach to public money — but little clarity on what the rule will actually require in the meantime. If the Court adopts the Carson-style approach several justices tested, the effect will not be confined to preschools or to Colorado. Any state or local program that conditions grants, contracts, licenses, or benefits on a nondiscrimination pledge — covering sexual orientation, marital status, or anything else a religious applicant might object to — would face the same strict-scrutiny exposure, regardless of how carefully the underlying rule is drafted to apply neutrally. That is a far larger reordering of how government spends money than the preschool framing suggests, and it is one the Court would be making through a benefits-conditions doctrine built for a different fact pattern, rather than through a direct reckoning with the 1990 precedent that was supposed to govern cases exactly like this one. Whatever the justices decide about Colorado's preschools, they owe states — and the families on both sides of this dispute — a rule stated plainly enough that the next legislature drafting a benefits program does not have to guess which doctrine will end up controlling it.