The Supreme Court Will Choose Between Church and State Once Again

The high court will once again wade into a collision between church and state—and choose between two wildly different ideas of religious pluralism.

With the Supreme Court’s next slate of decisions for this term not coming until Thursday, it is worth looking ahead to some of the top cases that the justices will hear next term. One of them, St. Mary Catholic Parish v. Roy, could significantly reshape the relationship between the government and religious organizations—as well as the high court’s precedents on religious pluralism.

The case is a dispute between Colorado education officials on one side and the Archdiocese of Denver, local Catholic parishes, and Catholic parents on the other. (For simplicity’s sake, I’ll refer to them as the state and the plaintiffs, respectively.) Colorado is one of a growing number of states with a universal pre-K program, or UPK. Voters approved on the ballot in 2020, state lawmakers enacted in 2021, and it went into effect in 2023.

When lawmakers enacted the UPK program, they required the Colorado Department of Education to adopt an equal-opportunity rule for participating preschool providers. The rule adopted by the department requires them to “provide eligible children 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.”

This requirement is problematic for some preschool providers in the state. Among them is the archdiocese, which oversees 34 Catholic preschools in Colorado. In 2023, the archdiocese formally requested a religious exemption from the equal-opportunity rule to allow it to “admit only families who agree with the Catholic Church’s teachings, including on gender and sexuality,” according to the parish’s petition for review. Colorado education officials denied that request, noting that the rule flowed from a state-law requirement and that they had no power to override the state legislature.

The plaintiffs have good reason to expect a favorable hearing at the high court. In recent years, the Supreme Court’s conservative majority has greatly expanded access to public funds and programs for religious organizations. Most Free Exercise Clause cases have historically involved discrimination against specific religious groups, such as the Amish or Jehovah’s Witnesses. The Free Exercise Clause, the court’s conservatives have more recently claimed, also protects religious organizations from discrimination against religion in general terms.

In the 2017 case Trinity Lutheran Church v. Comer, for example, the justices ruled that denying an “otherwise available public benefit” to a religious organization because of its religious nature violated the Free Exercise Clause. In 2019’s Espinoza v. Montana Department of Revenue, the court held that states could also not block students from using state scholarships at private religious schools. And in 2022’s Carson v. Makin, the court applied similar reasoning when striking........

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