Chief Justice John Roberts is steering the Supreme Court toward forcing Colorado to fund Catholic schools that follow church rules on marriage, over liberal justices' objections.

On Tuesday, as most of the country watched Election Day returns, the Supreme Court spent two hours on a free-exercise fight that could become the fourth major ruling requiring states to open public education funds to religious schools. The case is Saint Mary Catholic Parish v. Roy, and it pits Colorado’s universal preschool program against Catholic schools that will not abandon church teaching on marriage and sexuality to collect the money.

Colorado won in the lower courts by insisting every preschool that wants state funds must agree to a nondiscrimination policy covering sexual orientation and gender identity. The Catholic challengers say that condition forces them to violate sincere religious beliefs. CNN reported that the argument tracked the same path Chief Justice John Roberts has walked since 2017.

That path began with a Missouri church playground. In Trinity Lutheran Church v. Comer, the Court held that a state could not exclude a church from a playground-resurfacing grant solely because it was a church. Roberts wrote the majority opinion and tried to keep the holding narrow.

He stated then: “The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church, solely because it is a church, to compete with secular organizations for a grant.”

"The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church, solely because it is a church, to compete with secular organizations for a grant."

A footnote added that the decision covered religious identity and playground resurfacing, not every form of funding. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, saw larger stakes and dissented.

Sotomayor wrote: “To hear the Court tell it, this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government, that is, between church and state.”

"To hear the Court tell it, this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government, that is, between church and state."

Roberts did not stay narrow. In a 2020 Montana case he expanded the principle. In the 2022 Carson v. Makin decision out of Maine, he made clear that “use-based discrimination” against religious education is just as offensive to the Free Exercise Clause as status-based exclusion. The Court barred Maine from offering tuition aid to private nonsectarian schools while denying it to sectarian ones.

Roberts later explained the through-line: the Free Exercise Clause forbids discrimination on the basis of religious status, and earlier decisions “never suggested that use-based discrimination is any less offensive to the Free Exercise Clause.”

Colorado now argues its preschool rule is different because it is neutral on its face and applies to every applicant. Deputy Solicitor General Helen Norton told the justices that in Carson a state official examined curriculum and excluded schools for religious content. That, she said, was religious discrimination. Colorado’s condition, by contrast, simply requires every preschool seeking funds to accept the nondiscrimination terms.

Roberts was not persuaded the distinction mattered. He told Norton the effect of the law in Carson looked “pretty much the same as the effect of the law here,” and reminded her that Carson turned on the substance of free-exercise protections.

He pressed the point further: “The law in those cases, in each of them, expressly discriminated against religious schools on its face. Shouldn’t that make a significant difference given the potential reach of the principle you’re asking for?”

"The law in those cases, in each of them, expressly discriminated against religious schools on its face. Shouldn’t that make a significant difference given the potential reach of the principle you’re asking for?"

Liberal justices see a demand for special treatment

Justice Elena Kagan framed the dispute as a request that religious institutions receive better treatment, not equal treatment. “You can’t treat religious institutions differently. That’s not the principle that’s at issue here,” she said. “The principle at issue here is, ‘do you have to treat them better?’”

Sotomayor put the admissions question directly to counsel for the Catholic schools, Nicholas Reaves: “I’m asking you a direct question. Your Catholic schools will reject a child merely because their parents are homosexual?”

Reaves answered that the schools were not seeking a sweeping new rule. “I don’t think we’re actually asking for a very broad principle. When we’re talking about public benefits, it’s a relatively small category of things we’re talking about.” On the core point he added that if the practice is sincere religious exercise, “then I think that would be permitted.”

Justice Ketanji Brown Jackson joined the liberal bloc in showing frustration throughout the two-hour session. On the other side, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett appeared ready to side with the challengers.

Gorsuch cut through the state’s procedure-versus-substance defense: “The Constitution tends to deal in substances, not in shadows and procedures.”

"The Constitution tends to deal in substances, not in shadows and procedures."

Barrett asked Norton a practical question that undercut claims of pure neutrality: “I’m not assuming animus or animus against religion, but if you know that the effect of choosing that requirement will push out those with a contrary belief, how is that different?”

The exchange fits a longer pattern already visible to readers following signals of backing for Catholic preschools locked out of the same Colorado funding stream.

Colorado’s First Amendment losing streak keeps growing

Colorado did not arrive at the Court as a first-time defendant on these issues. The state has already lost a string of free-speech and free-exercise cases that exposed the same impulse to police religious and traditional viewpoints.

The New York Post noted the state’s record includes defeats in Masterpiece Cakeshop (2018, 7-2), 303 Creative (2023, 6-3), and Chiles v. Salazar (8-1). In two of those three losses, Democrat-appointed justices joined the majority, a sign the state’s positions could not even hold the Court’s left flank.

Carrie Campbell Severino summarized the governing rule the Court has repeated: the government cannot exclude people from public benefits because of their religious beliefs or exercise, the line drawn in Trinity Lutheran, Espinoza, and Carson v. Makin. She added that the high court continues to apply the law, and not only the conservative justices.

That history matters because Colorado’s preschool condition is not a narrow safety rule. It is a value test. Schools that teach the Catholic understanding of marriage and sexual morality must either drop the teaching or forfeit the public funds every other preschool may claim. Lower courts treated the rule as neutral. The Roberts Court has spent nearly a decade rejecting that kind of formalism when the real-world effect is to freeze religious exercise out of an otherwise open program.

The same Court that has drawn sharp lines on religious liberty has also drawn partisan fire, including calls captured when Hillary Clinton backed expanding the Supreme Court toward 13 justices.

From Scalia’s death to a durable free-exercise majority

The current doctrine did not appear overnight. In January 2016 the Court agreed to hear the free-exercise case that became Trinity Lutheran. A month later Justice Antonin Scalia died. A possible 4-4 split loomed, and the hearing was postponed roughly 15 months, past the presidential election.

Neil Gorsuch, President Donald Trump’s first appointee, joined the bench in April 2017. The Court then heard the Missouri playground case and issued its decision that June. Roberts has been chief justice since age 50, the youngest in two centuries, and at 71 still anchors the project.

Along the way the Court has effectively sidelined the 1990 decision in Employment Division v. Smith, the Scalia opinion that once gave states wide latitude to enforce neutral laws that only incidentally burdened religion. Lower courts still cited Smith. The Roberts majority has built a different framework around direct exclusion from public benefits.

Roberts himself has also acted in other high-stakes interim fights, including when he froze a 4th Circuit deadline in a dispute over party political ad rates.

What the Colorado rule actually demands

Colorado’s universal preschool program offers public money to expand early education. The price of admission is a written pledge not to discriminate on sexual orientation or gender identity. For a Catholic parish preschool, that pledge collides with longstanding church teaching on marriage as the union of man and woman and on the moral formation of children.

State lawyers call the condition even-handed. Catholic lawyers call it a forced choice between conscience and participation. The First Amendment text quoted in the coverage is straightforward: government “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The live question is whether a funding offer conditioned on surrendering religious practice is still a free and open program, or a penalty on belief.

Roberts’ questions suggested he views the practical result in Colorado as continuous with Maine’s tuition regime and Missouri’s playground bar. If a state creates a benefit and then designs the eligibility rules so that only schools willing to drop religious conduct can collect it, the Free Exercise Clause is implicated. That is the substance-over-shadows approach Gorsuch voiced and Barrett reinforced.

Partisan combat over the Court reaches far beyond education funding, as when Democratic cities asked the Supreme Court to keep a Biden-era deportation freeze in place.

Four cases, one direction

Taken together, the Missouri playground ruling, the Montana expansion, the Maine tuition decision, and the Colorado preschool argument form a single trajectory. States may run public programs. They may not use those programs as levers to make religious institutions behave like secular ones on matters of doctrine.

The liberal justices hear that trajectory as a demand for preferential treatment and as a green light for schools to turn away children because of their parents’ same-sex relationship. The conservative majority hears it as equal access: if the state pays for preschool seats at private providers, it cannot condition the money on the surrender of religious exercise.

No final merits decision has been issued. The lower-court victory for Colorado still stands until the Supreme Court says otherwise. Yet the oral-argument alignment was plain. Five conservatives plus the chief justice’s own history of writing and expanding the key precedents left little doubt about the likely direction.

For parents who want a preschool that teaches the faith they practice at home, the stakes are concrete. Public funds already flow to a wide range of providers. The only providers told to revise their admissions and moral standards are the ones whose standards come from religious conviction. That is the disparity the Roberts Court has spent eight years dismantling.

Religious schools should not have to check their doctrine at the door to sit at a table taxpayers already set for everyone else.