'Why Not Seek the Win/Win?': Kavanaugh Presses Colorado as Supreme Court Hears Catholic Preschools' Challenge

The Supreme Court on Tuesday heard a challenge from Catholic parishes in the Archdiocese of Denver to Colorado's Universal Preschool program, which the parishes say shuts their preschools out of state funding because of their religious beliefs. A transcript of the two-hour argument in St. Mary Catholic Parish v. Roy, No. 25-581, was posted by the court the same day, and The Digital Free Press read it.

The parishes' preschools ask families to be "open to and supportive of the church's teachings," their lawyer, Nicholas R. Reaves, told the justices. Colorado requires every publicly funded preschool to meet the same equal-opportunity conditions, including not turning away families because of the parents' protected class status, such as sexual orientation.

The Parishes and the United States

Reaves argued that denying the funding because of "sincere religious exercise" triggers strict scrutiny under the court's public benefits cases, including Carson v. Makin. He said the Tenth Circuit was wrong to limit that line of cases "to explicit religious exclusions only." He also argued the program is not "generally applicable," because Colorado "allows over a thousand schools to turn families away for a variety of different reasons."

Principal Deputy Solicitor General Sarah M. Harris argued for the United States in support of the parishes. She said the court "should decide whether Sherbert survives," referring to the 1963 case Sherbert v. Verner, and that "Colorado can't satisfy strict scrutiny."

Colorado's Defense

Colorado Deputy Solicitor General Helen Norton opened by saying, "Colorado welcomes religious preschools to UPK. The only thing Colorado asks is that they comply with the same conditions that every publicly funded preschool must meet, religious and secular alike." She said faith-based preschools in the program "remain free to teach their religious beliefs, including their beliefs about sex or gender or marriage."

Norton said unrebutted expert testimony at trial showed "preschools are not interchangeable to families," and that a parent turned away from a school that fits the family's schedule or neighborhood is harmed.

What the Supreme Court Justices Asked

Justice Brett Kavanaugh asked Norton, "Why not seek the win/win?" He said there are "2,000 schools" and "only 34 Catholic schools," leaving "plenty of opportunities to respect the rights of the religious believers and respect the ability of LGBT parents to find among the 2,000 schools appropriate fit for their children." He called the requirement "a would-be solution in search of a problem."

Justice Samuel Alito said the requirement "has a very severe impact on certain religions" and that there was "little evidence, if any evidence," that same-sex couples cannot find other preschools. He cited three earlier cases in which the court ruled against Colorado on First Amendment grounds, including Masterpiece Cakeshop and 303 Creative. Norton answered that "there is no evidence of any sort of any religious hostility or animus in the UPK program" and that neither lower court found any.

Other justices raised concerns about the parishes' position. Justice Elena Kagan said that because the court rarely questions the sincerity of beliefs, it would be "pretty easy for religious groups or religious individuals to come forward and say this would be a substantial burden." Justice Ketanji Brown Jackson asked whether the parishes' theory gives religious entities "a special preferred status," and said she saw "no principled basis" to distinguish a religious objection to the children of gay parents from one to the children of Black parents.

Chief Justice John Roberts told Norton she seemed "quite anxious to bury Sherbert, perhaps as anxious as the other side is to bury Smith," referring to Employment Division v. Smith.

In rebuttal, Reaves said there are "two UPK preschools currently in the program today within three miles of every single Catholic preschool in the Archdiocese" and that "Colorado's own expert said any harm was speculative." The Digital Free Press has not independently verified those figures. A decision is expected by the end of the court's term, typically in late June.

Sources: Supreme Court of the United States, oral argument transcript, St. Mary Catholic Parish v. Roy, No. 25-581, Nov. 3, 2026 (https://www.supremecourt.gov/oral_arguments/argument_transcripts/2026/25-581_h3cj.pdf); Supreme Court docket, No. 25-581 (https://www.supremecourt.gov/docket/docketfiles/html/public/25-581.html). Cover photo: "Panorama of United States Supreme Court Building at Dusk" by Joe Ravi, CC BY-SA 3.0, via Wikimedia Commons.