The Freedom From Religion Foundation is raising the alarm following the U.S. Supreme Court’s decision this morning to hear a case regarding public funding of religious preschools.
St. Mary Catholic Parish v. Roy concerns whether religious preschools can receive taxpayer money while refusing to comply with basic nondiscrimination requirements, including protections for LGBTQ+ children and families. FFRF warns that the case could significantly weaken longstanding constitutional principles that allow governments to enforce neutral, generally applicable laws without granting religious exemptions that harm others.
“This case is about whether publicly funded programs can be used to subsidize discrimination,” says FFRF Co-President Annie Laurie Gaylor. “The Constitution does not require, and should not permit, religious entities to accept taxpayer dollars while excluding families based on who they are.”
Colorado voters approved a preschool program in 2020 (implemented in 2022) to provide voluntary, publicly funded early childhood education. Participating providers must agree to an equal opportunity requirement ensuring that children are not denied enrollment based on characteristics such as religion, sexual orientation or gender identity. Two Catholic parishes challenged this requirement, arguing that it violates their First Amendment rights because they seek to consider the religious affiliation, sexual orientation and gender identity of students and their parents in admissions decisions.
Both the federal district court and the 10th U.S. Court of Appeals rejected those claims. The 10th Circuit unanimously held that Colorado’s nondiscrimination requirement is a neutral law of general applicability that does not target religion and is rationally related to the state’s legitimate interest in ensuring equal access to preschool.
The Supreme Court has agreed to review two legal questions centered on how courts should evaluate such neutrality and whether recent precedent has altered the framework established in Employment Division v. Smith. That 1990 decision, written by Justice Antonin Scalia, said that persons should not be exempt from neutral laws of general applicability that conflict with their religious beliefs. Notably, the court declined to take up the broader question of whether Smith itself should be overturned.
FFRF cautions that the court’s review could open the door to sweeping religious exemptions from civil rights protections in publicly funded programs.
“If the court rules in favor of the religious plaintiffs, it could snowball discrimination by publicly funded entities,” FFRF Legal Director Patrick Elliott warns. “That would undermine decades of civil rights law and harm vulnerable communities, especially religious and nonreligious minorities and LGBTQ+ families.”
Allowing exemptions in this context would mean that states could be forced to fund providers that openly exclude qualified families — contradicting the very purpose of universal programs designed to serve all.
FFRF intends to file an amicus brief in this case, urging the Supreme Court to uphold the 10th Circuit’s decision and preserve the government’s ability to enforce nondiscrimination requirements in publicly funded programs.
“The First Amendment protects the right to believe or not believe in religion,” Gaylor emphasizes. “It does not guarantee a right to discriminate on the public dime.”
FFRF will continue to monitor the case closely.
The Freedom From Religion Foundation is a U.S.-based nonprofit dedicated to defending the constitutional principle of separation between state and church and educating the public on matters relating to nontheism. With nearly 42,000 members, FFRF is the largest association of freethinkers (atheists, agnostics and humanists) in North America. For more information, visit ffrf.org.
