Public funding for religious preschools to face First Amendment test

While the current Supreme Court term is heading to a conclusion in the next month, the justices have already accepted cases for arguments next fall, including an important case on the First Amendment and religious rights.

On April 20, 2026, the Court agreed to grant a petition in St. Mary Catholic Parish v. Roy. The petitioners, Catholic preschools in the Archdiocese of Denver, claim religious discrimination when they were denied state funding under a Colorado universal preschool program that pays for families to send their children to public or private preschools.

The state of Colorado said the Catholic preschools could not receive funding if they excluded families from its preschools who disagreed with the Catholic Church’s teachings on gender and sexuality. The preschools also had not signed a nondiscrimination agreement as required by the state, claiming it violated their First Amendment rights.

The nondiscrimination agreement is based on a state law requiring that all eligible children receive “an equal opportunity to enroll and receive preschool services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability, as such characteristics and circumstances apply to the child or the child’s family.”

The U.S. Court of Appeals for the Tenth Circuit affirmed a lower court ruling that the state could deny funding to the schools. It cited Supreme Court precedent in Employment Division v. Smith (1990), stating the Colorado program and law were generally applicable and did not target the preschools.

The preschools believed that a recent Supreme Court decision, Carson v. Makin (2022), applied in its case. In Carson, a divided Court held that Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments violated the Free Exercise Clause of the First Amendment.

In accepting St. Mary Catholic Parish, the Court denied a request to consider whether Employment Division v. Smith should be overturned. Instead, it will consider how the two Supreme Court precedents, Smith and Carson, apply when lower courts consider if a government is explicitly excluding religious people and institutions from public benefits.

Court Precedents

While Employment Division v. Smith does not face immediate reconsideration, it will be front and center in the various arguments and briefs considered by the Court in the next few months.

The Smith case involved two Native Americans dismissed from their jobs at a private drug rehabilitation organization after failing a drug test. They were also denied state unemployment benefits. The two men had smoked peyote during a religious ceremony, and they claimed their activities were protected under the First Amendment’s Free Exercise Clause.

In his majority opinion, Justice Antonin Scalia wrote that the men sought “to carry the meaning of ‘prohibiting the free exercise [of religion]’ one large step further. They contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice.”

“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate,” Scalia concluded. At the time Smith was decided, several liberal justices objected to the majority opinion. “This distorted view of our precedents leads the majority to conclude that strict scrutiny of a state law burdening the free exercise of religion is a ‘luxury’ that a well-ordered society cannot afford,” wrote Justice Harry Blackmun in his dissent.

However, in recent years, conservative justices have criticized the Smith decision, and three rulings have further defined the intersection of state and private religious interests in matters related to government funding.

In Trinity Lutheran Church of Columbia v. Comer (2017), a church applied for a Missouri state grant to purchase recycled tires made into materials used to resurface playgrounds. Trinity Lutheran wanted the funds for its preschool, which had an open admission policy not related to faith. The state denied the grant request as conflicting with the Missouri state constitution, which forbid public funds “in aid of any church, section or denomination of religion.”

In his majority opinion, Chief Justice John Roberts held the state’s funding policy “violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status.”

Three years later in Espinoza v. Montana Department of Revenue (2020), Montana established a program that granted tax credits for donations to organizations that awarded private school tuition scholarships. The state then imposed a rule barring aid to any private school “controlled in whole or in part by any church, sect, or denomination.” Three parents sued after they were denied scholarship funds for their children’s tuition at Stillwater Christian School.

Chief Justice Roberts again wrote for the majority. “The application of the no-aid provision discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause,” Roberts concluded. Citing Trinity Lutheran, Roberts said Montana’s no-aid rule “excludes religious schools from public benefits solely because of religious status.” Such actions failed the Court’s strict security test, he said, where the government’s action “must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.”

Which Test Applies: Smith or Carson?

The Court’s most recent decision, Carson v. Makin from 2022, where again Roberts wrote the majority opinion, is at the center of St. Mary Catholic Parish v. Roy, heading toward arguments in the next term.

In Carson, Maine enacted a tuition assistance program for parents who resided in school districts without a secondary school or without a contract with a particular school in another district. Parents designated other secondary schools for their children to attend, and the school district transmitted payments to those schools to help defray the costs of tuition. But Maine only allowed tuition payments to “nonsectarian” schools, including certain private schools. Parents sued the state, claiming the denial of tuition assistance for schools affiliated with churches violated the Free Exercise Clause.

In his opinion, Roberts held that the Trinity Lutheran and Espinoza precedents applied again. “The ‘unremarkable’ principles applied in Trinity Lutheran and Espinoza suffice to resolve this case,” Roberts said. “While the wording of the Montana and Maine provisions is different, their effect is the same: to ‘disqualify some private schools’ from funding ‘solely because they are religious.’”

The Court agreed to decide two specific questions in St. Mary Catholic Parish v. Roy: “Whether proving a lack of general applicability under Employment Division v. Smith requires showing unfettered discretion or categorical exemptions for identical secular conduct” and “Whether Carson v. Makin displaces the rule of Employment Division v. Smith only when the government explicitly excludes religious people and institutions.”

The petitioners, St. Mary Catholic Parish, argue that Carson applies as “a clear rule” here: “If religious groups are excluded from a government funding program ‘because of their religious exercise,’ strict scrutiny applies.” They fault the Tenth Circuit for basing its decision on Employment Division v. Smith and the concept that there must be unmistakable evidence that religious use has been directly targeted. In a follow-up brief, the petitioners also argue that Colorado claims to welcome religious preschools “provided they abandon disfavored religious practices.”

In Tenth Circuit’s opinion, the court held that Trinity, Espinoza and Carson did not apply in this case since faith-based preschools were encouraged to take part in the program. “The only relevant limitation on any preschool’s participation is the nondiscrimination requirement, which applies to all preschools regardless of whether they are religious or secular,” the court wrote. “The nondiscrimination requirement exists in harmony with the First Amendment and does not violate the Parish Preschools’ First Amendment rights,” the appeals court concluded.

For now, briefs are due at the Court in late June and August, potentially putting arguments in front of the justices in the first part of its next term in what is sure to be a closely watched case.

Scott Bomboy is the editor in chief of the National Constitution Center.