For the past three years, Colorado has offered free preschool to every four-year-old in the state. Colorado invites all preschool providers to join the program, whether public or private, and requires participating preschools to be open to all students as well: To receive state funds, providers must sign a nondiscrimination agreement that requires each preschool to provide children with an “equal opportunity” to enroll and receive services, regardless of characteristics like race, religious affiliation, sexual orientation, or gender identity.
The program provides funds to dozens of faith-based preschools, including six Catholic preschools that signed the nondiscrimination agreement and participate on the same terms as everybody else. But two religious preschools, St. Mary Catholic Parish in Littleton and St. Bernadette in Lakeside, want both to receive state funds and also to discriminate, by refusing to enroll transgender children and the children of same-sex couples. They argue that they are constitutionally entitled to do both. On Tuesday, the Supreme Court will hear oral argument in their case, St. Mary Catholic Parish v. Roy, to determine how easy it should be to get religious exemptions from antidiscrimination laws and subsidize bigotry with taxpayer money.
The First Amendment protects the right to “free exercise” of religion, and in 2022, the Supreme Court held that a state infringes on that right “when it excludes religious observers from otherwise available public benefits.” The Court has also recognized for decades that “free exercise” is not tantamount to a free pass to violate laws that apply to everyone. So long as a law is “neutral” and “generally applicable,” the government can defeat a constitutional challenge by showing that the law is rationally related to a legitimate government interest.
In the present case, Colorado did precisely that, proving at trial in 2024 that the sexual orientation and gender identity aspects of the equal opportunity requirement applied equally to all providers. A federal district court found that this provision “easily” withstood rational basis review, and the Tenth Circuit Court of Appeals affirmed.
In their briefs to the Supreme Court, the parishes argue that the equal opportunity requirement is not neutral and generally applicable, and that Colorado “knowingly excluded Catholic preschools” from the universal preschool program “solely on account of their religious exercise.” And they ask the Court to decide if the lower courts should have been holding Colorado’s law to a tougher legal standard—a standard that could allow businesses to close their doors to marginalized people as long as they claim that God wants them to do so.
St. Mary Catholic Parish is one of several cases the Court has considered in recent years that threaten to pervert individual First Amendment rights into a legal license to deny equal rights to LGBTQ people. In March 2026, for example, the Court ruled on a challenge to another Colorado law that banned state-licensed healthcare professionals from trying to change a minor’s sexual orientation or gender. Lower courts viewed the law as a legitimate regulation of medical care. But in Chiles v. Salazar, right-wing attorneys argued that lower courts needed to apply strict scrutiny under the First Amendment.
The Supreme Court agreed, concluding that the law regulated speech and discriminated “based on the speaker’s point of view.” Like Chiles, the Colorado preschool case recasts the state’s effort to protect queer children from harm as discrimination against the people who would harm them.
St. Mary Catholic Parish is also like Mahmoud v. Taylor, the Court’s June 2025 ruling that a school board violated parents’ First Amendment rights by not allowing them to opt their children out of instruction that included books with LGBTQ characters. As in the present case, the petitioners in Mahmoud were represented by the Becket Fund for Religious Liberty. Becket argued that the books were “inconsistent” with the parents’ “religious beliefs” and “child-raising philosophies,” and that the Constitution guarantees parents’ right to “opt children out of classroom instruction on such sensitive religious and ideological issues.”
Again, the Supreme Court agreed, ruling that the storybooks posed “a very real threat of undermining the religious beliefs that the parents wish to instill in their children.” Now, in St. Mary Catholic Parish, Becket is once again framing the existence of queer people as an unreasonable burden on religious exercise.
Chiles and Mahmoud are not outliers. The Alliance Defending Freedom, which litigated Chiles, also represented the petitioners in 303 Creative LLC v. Elenis, the Supreme Court’s 2023 ruling allowing a would-be wedding website designer to deny services to same-sex couples. And ADF represented the petitioners in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court’s 2018 ruling allowing a baker to deny services to same-sex couples. The Becket Fund also represented the petitioners in Fulton v. City of Philadelphia, the Court’s 2021 ruling allowing Catholic adoption services to refuse to work with same-sex or unmarried couples. In each of these cases, these two organizations have taken the Court’s hints—and returned with new cases to push queer people further out of public life.
The Constitution protects Americans’ rights to hold differing beliefs and participate in society as equals. For conservative Christians who believe in God but not equality, this is a problem. St. Mary Catholic Parish is the latest chapter in their effort to rewrite the First Amendment—an attempt not just to earn the right to illegally discriminate, but also to have taxpayers subsidize it.
