Amicus Brief: St. Mary Catholic Parish v. Roy

The law around accommodation of religious belief in public education is in flux, and this case is about a common issue that has developed.

In 2022, Colorado introduced a universal preschool program offering 30 hours of free education at public or licensed private preschools. However, the program’s “equal opportunity mandate” excludes certain religious preschools based on their faith-based policies—such as requiring bathroom use by biological sex and admitting only families who support their religious beliefs. This exclusion has created a funding disparity, forcing at least one Catholic preschool to close. The Archdiocese of Denver, two preschools, and a family sued, arguing religious discrimination. The district court ruled for Colorado, and the Tenth Circuit affirmed. Judge Federico held that the mandate satisfied both Carson v. Makin (can’t discriminate re public-benefits program based on religious status) and Employment Division v. Smith (religious exemptions to “generally applicable” laws not required), finding it neutral and generally applicable—even though secular exemptions are allowed. The court praised Colorado’s program as a “model example” of balancing nondiscrimination laws with religious accommodation.

The Tenth Circuit decision demonstrates a confusion in the circuits. Is a law generally applicable if secular but not religious exemptions are allowed? Is a church service like a concert? Or is it not generally applicable if officials are given discretion to grant exemptions? MI has joined Notre Dame Law School’s religious liberty clinic and the Notre Dame Education Law Project, directed by MI senior fellow Nicole Stelle Garnett, on a brief explaining why the Tenth Circuit's decision doesn't work with existing Supreme Court precedents and allows governments to undermine religious practice through creative legislative drafting and novel procedures.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Nicole Stelle Garnett is a senior fellow at the Manhattan Institute and is John P. Murphy Foundation Professor of Law at the University of Notre Dame.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.

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