On Nov. 3, the Supreme Court will hear argument in St. Mary Catholic Parish v. Roy. This case raises important questions about how far the court will go in expanding the Constitution’s protections of the free exercise of religion. One of the most dramatic changes in constitutional law in recent years has concerned the religion clauses of the First Amendment. For decades, the Supreme Court took a robust approach to the establishment clause, seeing it as best described by Thomas Jefferson’s metaphor of a wall separating church and state. At the same time, the court took a much weaker approach to the free exercise clause, as embodied in its decision in Employment Division v. Smith, which held that the First Amendment does not provide a basis for religious exemptions from general laws.
But, in recent years, the court has completely reversed this. It has greatly lessened the protections of the establishment clause; a majority of the current justices reject the idea of a wall separating church and state. In its most recent case about that provision, 2022’s Kennedy v. Bremerton School District, the court declared: “‘[T]he line’ that courts and governments ‘must draw between the permissible and the impermissible’ has to ‘accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.’” Given this, it is likely that only government coercion to worship or adhere to a particular religion will be found to violate the establishment clause.
By contrast, the Supreme Court has aggressively expanded the protections of the free exercise clause. In 2021’s Fulton v. City of Philadelphia, the court held that it violates the free exercise of religion for the city, in contracting with private entities to place children in foster care, to insist that contractors not discriminate based on sexual orientation when they had a religious reason for doing so. In 2022’s Carson v. Makin, as well as 2018’s Trinity Lutheran v. Comer and 2020’s Espinoza v. Montana Department of Revenue, the court ruled that it violates the free exercise of religion for the state to provide aid to private secular schools that it denies to religious schools. And in 2025’s Mahmoud v. Taylor, the court held that it violates the free exercise of religion for a school system to fail to give parents of elementary school students notice and a chance to opt their children out of a curriculum that presented “LGBTQ+- inclusive” storybooks.
St. Mary Catholic Parish v. Roy
Colorado’s universal preschool program funds preschools – public, private, and religious alike – that sign an agreement to give children an “equal opportunity to enroll” regardless of, among other things, religious affiliation, sexual orientation, or gender identity. Two Catholic parish preschools and the Archdiocese of Denver say that they have a religious belief that they must consider a family’s sexual orientation and gender identity in admissions, and they sued under 42 U.S.C. § 1983 for an injunction against the preschool requirement.
The U.S. Court of Appeals for the 10 Circuit upheld the Colorado law, applying Employment Division v. Smith and explaining that the Colorado law is a neutral law of general applicability; it was not motivated by a desire to apply to religion and applies equally to all. The court also explained that Colorado was not denying funding to religious schools that it provides to secular institutions: No preschool taking state money can refuse to admit children because of the race, religion, sexual orientation, or gender identity of the parents.
The Supreme Court granted certiorari on two questions: (1) Whether proving a lack of general applicability under Smith requires showing unfettered discretion or categorical exemptions for identical secular conduct; and (2) whether Carson v. Makin (that the government violates the free exercise clause if it denies funds to religious schools that it provides to private secular schools) displaces the rule of Smith only when the government explicitly excludes religious people and institutions.
Why this case matters
There are many underlying issues that could make the case enormously important. First, will the court overrule Employment Division v. Smith and, if so, what will replace it? The court did not grant review on this question, but it certainly underlies the case. Five years ago, in Fulton v. City of Philadelphia, Justice Samuel Alito wrote a lengthy opinion concurring in the judgment, joined by Justices Clarence Thomas and Neil Gorsuch, urging the overruling of Smith. Justice Amy Coney Barrett wrote a concurring opinion, joined in full by Justice Brett Kavanaugh, in which she said that she agreed with much of Alito’s opinion, but that overruling Smith would raise many difficult questions and there was no need for the court to resolve them in the case before it.
Petitioner St. Mary Catholic Parish clearly is urging the court to jettison Smith. The first argument in its brief is that the “Court rarely applies Smith.” It says: “Out of the eighteen free exercise cases this Court has resolved since Smith in 1990, this Court has relied on Smith only twice to rule against the religious objector,” and one of these was Smith itself. But the brief says that lower courts, like the 10th in this case, constantly rely on Smith.
The ideological shift on the court with regard to free exercise claims has been dramatic. The majority opinion in Smith was written by Justice Antonin Scalia and it was liberals at the time that were critical of this holding. Now, it is the most conservative justices who are urging Smith’s overruling and it is the liberal justices who are defending it. Smith was about whether Native Americans should have a constitutional right to a religious exemption from a law prohibiting consumption of peyote – a hallucinogenic substance. Now, the cases are about Christians, such as the Catholic Church in St. Mary Catholic Parish, that are seeking religious exemptions.
Second, there is the question of when religion is infringed. If the court overrules Smith, this issue will become much more salient, as will the court’s need to define what is “religion” and a “religious belief.” Under Smith, with no exemptions for any religion, there is far less need to face these questions.
For instance, in St. Mary Catholic Parish, there is a question of whether the Colorado law infringes the church’s religious beliefs. The Colorado statute does not limit the ability of the Catholic schools to teach whatever they choose. The law simply says that a school receiving government funds should not discriminate against children, including based on the sexual orientation or the gender identity of the parents. The Catholic Church certainly may say that its teachings condemn same-sex sexual activity and gender transitions. But their contention in the present case is that their religion requires that they discriminate against children because of their parents being gay, lesbian, or transgender. This seems a much more difficult argument unless the court is going to accord considerable deference to religious claims in applying the free exercise clause.
Third, even if the court overrules Smith, does the government have a compelling interest in preventing discrimination against children on account of the sexual orientation or gender identity of their parents? In 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court considered the question of whether a baker had a right under the free exercise clause to violate a Colorado civil rights statute by refusing to design and bake a wedding cake for a gay couple. The court ruled narrowly, holding that members of the Colorado Civil Rights Commission had expressed impermissible animus towards religion. In 2023’s 303 Creative v. Elenis, the court held that it would violate the freedom of speech to apply a civil rights statute to force a website designer to provide her wedding services for same-sex couples. The court did not consider her claim based on the free exercise of religion.
There always is a tension between liberty and equality. Any law that prohibits discrimination limits the freedom to discriminate. For decades, the Supreme Court was clear that prohibiting discrimination was more important than protecting the right to discriminate. In 1968’s Newman v. Piggy Park Enterprises, Inc., the court summarily rejected a claim that a person’s religious beliefs were a basis to discriminate in violation of civil rights statutes. If the court overrules Smith, or says that strict scrutiny should be used under Smith, the question will need to be addressed: should the free exercise of religion provide a right to harm others by discriminating against them?
Fourth, if the government provides funding for schools, may it deny funding to schools that discriminate based on their religious beliefs? In a series of cases culminating most recently in Carson v. Makin, the court has held that the government violates the free exercise clause if it denies funds to religious schools that it provides to private secular schools. St. Mary Catholic Parish argues that Colorado is doing just that: denying it funding because of its exercising its religious beliefs and excluding children whose parents are gay, lesbian, or transgender.
But Colorado argues that its law does not discriminate based on religion. It will pay for children to attend preschools that are religious so long as they do not discriminate against children based on their parents’ sexual orientation or gender identity. In Carson, the Maine statute paid for children in areas without public schools to attend private schools but denied funding for children attending religious schools. Colorado says that its law is different because it does not exclude such institutions.
Conclusion
The Supreme Court could rule in favor of Colorado by applying Employment Division v. Smith. But the conservative majority – and especially Thomas, Alito, Gorsuch, Kavanaugh, and Barrett – want to expand the protections of the free exercise of religion. St. Mary’s Catholic Parish v. Roy could provide them the opportunity to do so and thereby dramatically change the law.