St. Mary Catholic Parish v. Roy

Colorado's so-called universal preschool program pays for families to send their children to the preschool of their choice, public or private. To participate, preschools must ensure all families have an "equal opportunity" to enroll regardless of, inter alia , race, religious affiliation, sexual orientation, gender identity, income level, or disability. Colorado nonetheless permits numerous exemptions from this requirement, both categorical and discretionary, allowing preschools to admit only "children of color," "gender-nonconforming children," "the LGBTQ community," low-income families, and children with disabilities. But Colorado excludes Catholic preschools because they admit only families who support Catholic beliefs, including on sex and gender. The Tenth Circuit upheld Colorado's decision to exclude Catholic preschools. Applying Employment Division v. Smith , it held that Colorado's secular exemptions and discretion did not undermine general applicability. In so doing, the court sided with the minority position in an entrenched and acknowledged 7 -4 split over what kinds of exemptions and discretion undermine general applicability. The court also eschewed Carson v. Makin , concluding that its rule was inapplicable because Colorado's exclusion was not "on the explicit basis" of religion. The questions presented are: 1. Whether proving a lack of general applicability under Employment Division v. Smith requires showing unfettered discretion or categorical exemptions for identical secular conduct. 2. Whether Carson v. Makin displaces the rule of Employment Division v. Smith only when the government explicitly excludes religious people and institutions. 3. Whether Employment Division v. Smith should be overruled

Colorado voters established the Universal Preschool Program (UPK) to provide free preschool services through a “mixed delivery system” of public and private providers. To receive state funds, providers must sign a nondiscrimination agreement that requires them to enroll students regardless of their sexual orientation or gender identity. Two Catholic parishes and the Archdiocese of Denver sought to participate in the program but refused to sign the agreement. They argued that their religious tenets require them to consider the sexual orientation and gender identity of families during admissions to maintain their religious environment. The schools specifically challenged the program’s “preference system,” which uses an algorithm to match families with schools based on categories like sibling enrollment or congregation membership. They also highlighted a “temporary waiver” provision that allows the state to grant providers extra time to meet certain quality standards. The schools argued that these features create a system of “individualized exemptions” where the state exercises discretion to favor secular interests. Because the state allows these secular preferences while denying a religious exemption to the nondiscrimination rule, the schools contended the program unconstitutionally penalizes them for their religious character. The district court denied the schools’ request for a permanent injunction, ruling that the nondiscrimination requirement is a neutral and generally applicable law. The U.S. Court of Appeals for the Tenth Circuit affirmed that decision, holding that the state’s program does not grant the type of unfettered discretion that would trigger strict scrutiny.