Does a Catholic school have a constitutional right to demand state funds for its pre-K program while refusing to admit four-year-olds whose parents are gay or transgender, when the state requires all recipients of such funding not to exclude children on that basis? You might think the answer would obviously be no. And for most of our nation’s history, you would be correct. The First Amendment forbids the government from abridging the “free exercise of religion” by, for example, singling out religious organizations for worse treatment than secular ones. But does “free exercise” require the government to give religion preferential treatment not afforded to anyone else, even if doing so would require the state to subsidize the infliction of direct discriminatory harm on its own citizens?

The Supreme Court will consider that question on Tuesday, in St. Mary Catholic Parish v. Roy. The parish challenges a Colorado law that offers state funding for pre-K education on the condition that the recipient not deny admission to any child on the basis of, among other things, sexual orientation and gender identity. (I helped Colorado defend the law in the Supreme Court.) Religious schools are free, along with private secular schools, to seek state funding for pre-K. But all institutions seeking the funding must adhere to certain conditions, including the promise not to discriminate. Many religious schools participate in the program, including other Catholic schools, while honoring that condition. But St. Mary Catholic Parish says its religious precepts require it to deny admission to children of gay, lesbian, and transgender parents. (Where such a requirement is found in Catholic doctrine is a good question, but not one the courts can ask: they must accept religious adherents’ beliefs as they are, as long as they are sincerely held, and no one disputes the parish’s sincerity in this case.)

Both the district court and the court of appeals rejected the parish’s claim. They reasoned that the nondiscrimination condition applies equally and without exception to all recipients of pre-K funding, whether they are religious or secular, and found that Colorado has a substantial interest in ensuring that it does not subsidize discrimination against its own citizens on the basis of LGBT identity. Similar interests underlie federal civil rights laws, including Title VI, which prohibits all recipients of federal funds from discriminating on the basis of race or religion, and Title IX, which bans sex discrimination by educational institutions that receive federal support.

Under well-established precedent, the lower courts were plainly correct. In 1990 the Supreme Court ruled, in Employment Division v. Smith, that a neutral law of general applicability—namely one that does not single out religion—cannot be said to violate the Free Exercise Clause just because it has the incidental effect of burdening someone who holds a particular religious belief. In that case, Native Americans challenged an Oregon law banning the use of peyote. They argued that even though the law applied to everyone and was not targeted at Native Americans, it had the effect of burdening their exercise of religion because using peyote was an integral part of their devotional services.

Writing for the majority, Justice Antonin Scalia, a figure revered by the Court’s current conservative members, explained that if every law that happened to have the effect of burdening someone’s religion triggered strict scrutiny under the Free Exercise Clause, every man would be “a law unto himself.” That’s because there is no limit to what can be a religious belief. One man’s religion might forbid the payment of taxes; another’s might require racial segregation; another’s might demand excluding young children from pre-K programs if their parents are gay. If the Free Exercise Clause required strict scrutiny of any law that had the effect, even if wholly unintended, of burdening someone’s religious practice, there would be no limit to the challenges that could be brought.

Smith was controversial from the day it was handed down. Four justices disagreed with the majority’s rule (O’Connor, Blackmun, Brennan, and Marshall), and the ACLU led a wide-ranging coalition of religious organizations in a campaign to overturn it by statute. The resulting Religious Freedom Restoration Act (RFRA), which sought to reverse the decision by creating a statutory right to strict scrutiny anytime a law had the effect of burdening religion, passed the House unanimously and the Senate by a 97-3 margin. The Supreme Court, however, held that Congress cannot overturn a constitutional decision by statute, and struck down RFRA as it applied to state laws. (It still applies to federal law, because Congress is free to limit federal law as it pleases; it just can’t intrude on state laws without a proper constitutional basis.)

There is certainly a case to be made that Smith does not adequately protect religion. As the dissenters in Smith forcefully argued, because there are so many different religions, a legislature could easily overlook the effects of its law on a minority religious sect, just as legislatures might overlook the needs of the disabled. And as with disability, where an accommodation can be made without seriously undermining the state’s interests, it makes sense to allow for one. Well over half the states have enacted state laws modeled on the Religious Freedom Restoration Act, so those accommodations are already required in most states and under federal law—so long as they do not undermine important state interests.

That last caveat is critical, however. It is one thing to accommodate religious practice where doing so does not impose serious harm on anyone else—such as allowing the Native Americans to use peyote in their religious ceremony, or permitting an orthodox Jew or a Sikh to wear a headdress in court notwithstanding a general rule against head coverings for everyone else. It is another thing altogether when the accommodation requested is to discriminate against toddlers because their parents are gay or transgender—and to receive a state subsidy for one’s discrimination. Colorado’s interest in requiring those who take its funds to respect the dignity and indeed innocence of such children and their families is as compelling as they come.

Religious liberty advocates have long called for the Court to overturn Smith, and Justices Alito, Thomas, and Gorsuch have said they are ready to do so. Yet in a 2021 case presenting that question directly, Fulton v. City of Philadelphia, the Court sidestepped the issue, finding instead that Smith did not apply because an obscure and never-used provision in the city’s services contract permitted individualized discretionary waivers, making the program less than “generally applicable.” Justice Barrett wrote a separate opinion for herself and Justice Kavanaugh in that case, stating that she found Smith difficult to reconcile with the First Amendment but remained unclear about what standard should replace it; she specifically questioned whether the strict scrutiny approach that Alito, Thomas, and Gorsuch preferred would be appropriate. Since then, the Court has declined to take up the question again. The parish asked the Court to overrule Smith in its case, but while the Court agreed to review the case, it declined to reconsider Smith.

So Smith remains the law, even though at least five justices are uncomfortable with it. Rather than overturn it, the Court has increasingly narrowed its application. In recent years the majority has ruled that if a law permits any secular activity without permitting “comparable” religious activity, the law is not neutral, so Smith does not apply. On that theory it struck down Covid-19 regulations that barred congregating in public places; the Court found that if the law allowed congregation for, say, business purposes, it had to allow congregating for religious purposes as well. In the Philadelphia case, meanwhile, the Court held that the mere existence of a discretionary waiver provision renders a law not generally applicable.

In the Colorado case, the parish asks the Court once again to find that Smith does not apply. But the parish has advanced no good reason not to apply Smith here, and a pre-K school saying that it needs to exclude four-year-olds if their parents are gay or transgender is not exactly a sympathetic ask—especially where other Catholic schools have willingly taken the funding while agreeing not to discriminate against such children.

The parish offers several arguments, none of them persuasive. Colorado’s law, it suggests, is unconstitutional under a 2022 decision in which the Court struck down a Maine law that subsidized families to send their children to private schools but excluded religious schools from eligibility. But the Maine law was invalid because it disqualified religious schools simply because they were religious. By contrast, Colorado does not single out religious schools: it welcomes their participation so long as they comply with the standards it applies to all.

The parish also argues that because Colorado’s law categorically permits pre-K schools to prefer kids with disabilities or from low-income families, consistent with federal disability and HeadStart requirements, the state effectively allows those schools to discriminate against kids without disabilities or from wealthy families. Since that differential treatment is permitted, the parish argues, but not its own desired discrimination, the law is not “neutral.” But that misunderstands Colorado’s law. No one thinks a law banning discrimination based on disability and income is designed to protect kids without disabilities, or rich kids. When a school accommodates a child with a disability (as federal law requires), it does so to ensure equal opportunity to someone facing an obstacle. The same is true for programs, such as HeadStart, that offer additional services to low-income youth. Both are designed to further equal opportunity, not to deny it. The parish’s desire to exclude children from LGBT families, by contrast, is directly contrary to the law’s ban on discrimination. The state has to treat like cases alike, to be sure, but helping a child with a disability and barring a child because his parents are gay are simply not comparable.

The parish finally argues that Colorado’s law is not generally applicable because, as in the Philadelphia case, it permits individualized discretionary exemptions. But as the courts below found, that also misreads Colorado law. The statute’s equal opportunity requirement allows no waivers whatsoever. The parish points to commonplace provisions that allow schools, for example, to favor children with a sibling at the same school, or whose parents live or work near the school. But those preferences do not permit discrimination against any child based on LGBT status or any other protected characteristic. Because Colorado’s law admits no exceptions, it truly is “generally applicable.”

So if the Court applies settled precedent, Colorado should win. But as I have shown in covering the 2024 and 2025 terms, this Court’s conservative majority has not been shy about overruling or simply ignoring precedent where it would require the Court to reach an ideological result the conservative justices oppose. The Colorado case is the latest in a long line of cases pitting religious faith against state efforts to protect LGBT individuals. Since 2018 the Court has heard cases asking whether a Christian baker could decline to bake a cake for a gay couple celebrating their marriage, whether a Christian website designer could refuse her service to same-sex couples, whether a Christian counselor could provide “conversion therapy” to minors even though the professional community considers such treatment fraudulent and harmful, whether a Catholic social services agency could receive government funds to help place foster children while refusing to place them with same-sex couples, and whether a public school had to let religious parents opt their children out of kindergarten when the teacher read from a book treating LGBT people as deserving of equal respect. Every time, the Court sided with the religious adherent.

If that pattern persists, Colorado will lose again. The state was also on the losing side of the cake shop, web design, and conversion therapy cases; it deserves credit for doing what it can to protect LGBT people, but the Court is doing what it can to ensure that Christians need not follow the rules. For the Court to rule against the state again, however, it will have to pervert its existing doctrine in still more religion-friendly and LGBT-hostile ways. The idea that a religious institution has a constitutional right to demand that the state subsidize its discrimination is not a reasonable accommodation; it’s a naked preference for religious intolerance over equal treatment for all.