Supreme Court Signals Possible Shift on Religious Rights in Pre-K Case
The Supreme Court has relisted St. Mary Catholic Parish v. Roy, heightening scrutiny of the Smith precedent on religious liberty.
Why it matters: Legal tech and compliance teams must prepare for a possible shift in the standards for religious exemptions in public benefit programs. A new approach would impact litigation strategies, risk management, and policy drafting for education, nonprofit, and government clients.
- St. Mary Catholic Parish v. Roy challenges Colorado’s nondiscrimination rule for its universal preschool program.
- The Tenth Circuit upheld Colorado’s policy, citing the 1990 Supreme Court ruling Employment Division v. Smith.
- The U.S. Solicitor General filed an amicus brief supporting the Catholic schools, an uncommon move.
- Relisting suggests the Court may reconsider Smith’s limit on religious protection under the Free Exercise Clause.
The Supreme Court is drawing renewed focus to religious liberty precedent by relisting St. Mary Catholic Parish v. Roy for its upcoming conference. The petition arises from Colorado’s universal pre-K program, which bars discrimination by participating schools based on sexual orientation and gender identity.
Two Catholic preschools argue that this condition conflicts with their religious teachings. The Tenth Circuit upheld Colorado’s policy, relying on the Supreme Court’s 1990 decision in Employment Division v. Smith. Smith stands for the principle that neutral, generally applicable laws do not violate the Free Exercise Clause, even if they burden religious practice.
This term, the U.S. Solicitor General submitted an amicus brief supporting the churches—an infrequent action at the cert stage. The filing states this case raises "important questions of federal law" about the scope of religious liberty protections for participants in public benefit programs.
Legal teams monitoring the Supreme Court should note the relisting as a signal the justices may reconsider or clarify Smith, which would recalibrate compliance obligations for faith-based entities interacting with government funding across all sectors.
Should Smith be narrowed or overturned, organizations will need to update risk assessments and adapt policies governing religious participation in government programs, potentially triggering waves of new litigation and compliance reviews.
By the numbers:
- 1990 — Year Employment Division v. Smith was decided, setting the current standard.
- 2 — Number of Catholic preschools at issue in the Colorado case.
- 1 — Amicus brief filed by the U.S. Solicitor General at the cert stage, signaling high-level federal interest.
Yes, but: Relisting does not guarantee the Court will grant review or overturn existing precedent; several cases are relisted before denial.
What's next: A decision on whether the Supreme Court will hear the case is expected in the coming weeks.