The Question the Supreme Court Won’t Answer
The Court took the case. It refused the question. Here is why that matters.
In November, a Catholic archdiocese asked the Supreme Court to throw out a thirty-six-year-old precedent that has shaped American religious liberty law for an entire generation. Several conservative justices have spent years signaling they wanted to do exactly that. The Court had a clean shot.
It said no.
When the justices agreed on April 20 to hear St. Mary Catholic Parish v. Roy, they took the case but quietly refused to touch the bigger question the parishes had teed up for them. They will decide the case using the very legal framework the parishes had asked them to abandon.
That is a tell. And it is the most interesting thing about the case nobody is talking about.
The case on the surface
St. Mary is, on the surface, the latest installment in a familiar story. Colorado created a universal preschool program in 2022, offering every family up to fifteen hours a week of free preschool, worth about six thousand dollars per child. Any licensed provider could participate. There was one condition. Providers had to agree not to discriminate against families based on sexual orientation or gender identity.
The Catholic parishes of the Archdiocese of Denver applied. They were turned away because they would not agree to enroll children of same-sex parents, a condition the parishes said they could not meet without compromising the religious identity that makes them what they are.
A federal trial court ruled for Colorado. A federal appeals court agreed. And now the Supreme Court will decide whether the state can keep its universal program universal by closing the door to providers like the parishes, or whether keeping that door closed is itself the kind of religious targeting the Constitution forbids.
That is the question on the surface. It is not the most interesting question in the case.
A decade of easy wins, and a decade of dodges
For the past decade, the Court has been quietly building one of the most consequential bodies of religious liberty law in modern memory. Case-by-case, it has ruled that states cannot create public benefit programs and then quietly carve religious institutions out of them. A Missouri church-run school excluded from a playground safety grant. Montana religious schools barred from a scholarship program. Maine faith-based schools refused tuition assistance. The Court ruled for the religious institutions every time.
These rulings came steadily, and they came easily. The competing interests were largely abstract. Concerns about public money flowing to religious education are serious, and the dissenting justices said so at length, but no actual third party was being turned away.
Then there is the other line of cases. The collision cases. The ones where a religious party wants to be excused from a law that exists to protect LGBTQ people from discrimination. The Christian baker who would not make a cake for a same-sex wedding. The Catholic foster care agency that would not place children with same-sex couples. The Christian web designer who would not build wedding sites for same-sex couples.
The Court has decided every one of them on the narrowest ground available.
The baker won because one Colorado official had said something dismissive about religion during the agency proceedings. That was enough to decide the case without saying anything about whether religious business owners can refuse to serve gay weddings.
The foster care agency won because Philadelphia’s nondiscrimination policy gave officials discretion to grant exemptions. If they could grant exemptions for any reason, the Court said, they had to consider granting one for religion. Another technical exit. Another case decided without resolving the underlying conflict.
The web designer won, but on free speech grounds, not religious freedom. The case turned on whether websites are a form of expression the government cannot compel, not on what religious freedom means when it bumps up against equality.
This is the pattern. Every time the Court has had a chance to say plainly what religious freedom requires when nondiscrimination law is on the other side, it has found a way out. A bad official. A loophole in the rules. A speech doctrine. The Court has been telling both sides that the Constitution is on their side, while never having to explain how that can possibly be true.
What the Court refused to touch
Now look at how the Court took up St. Mary.
When you ask the Supreme Court to hear your case, you frame the questions you want them to answer. The lawyers for the parishes framed three questions. Two were technical. The third asked the Court to throw out the 1990 precedent that, since it was decided, has been the rulebook for these collisions.
The Court agreed to hear the first two questions and silently dropped the third.
This is not routine docket management. The 1990 precedent in question, Employment Division v. Smith, has been openly inviting challenge for years. It says, basically, that if a law applies to everyone neutrally, religious people have to follow it like everyone else, even if it burdens their faith. Justice Alito wrote a fifty-page opinion in 2021 arguing the precedent should be overruled. Justices Thomas and Gorsuch agreed. Justice Barrett, in a separate opinion, said the precedent was vulnerable but she was not convinced about what should replace it.
That fourth vote is the whole story. Three justices want to overrule the precedent. A fourth has doubts about it. They need a fifth. And the fifth has not materialized.
So, St. Mary will be decided using the existing rulebook, not a new one. And that matters for two reasons.
The first is practical. If Colorado loses, the Court will have to explain why under the existing rules. The parishes’ argument is that Colorado’s program is not actually neutral. The state lets some preschools prioritize low-income families. It lets others reserve seats for children with disabilities. And according to the program’s own director, the rules allow preschools to serve only children of color, or only LGBTQ families, or only gender-nonconforming children. If you let those exemptions through and refuse a religious one, the parishes argue, you are not being neutral. You are picking favorites.
The second reason is more interesting. By keeping the case inside the existing framework, the Court is preserving its ability to keep doing exactly what it has been doing for a decade. The current rulebook, with its various carve-outs and exceptions, is a tool for case-by-case adjustment. A new rulebook would force the Court to actually say what religious freedom means when nondiscrimination law is on the other side.
The Court is not ready to say that. It has been signaling that it is not ready for ten years. The refusal to touch the bigger question in St. Mary is the latest signal.
Two families, two promises
What you are watching is not a Court that has decided what religious freedom means in the age of LGBTQ equality. You are watching a Court that is using narrow rulings as a substitute for an answer.
That has costs. The biggest is that real people, on both sides, keep being told that the Constitution is on their side, and they keep ordering their lives around that promise, and the Court keeps deferring the moment when one of those promises must give way to the other.
The Sheley family, the Catholic plaintiffs in St. Mary, hoped to use the universal preschool benefit to send their seven children to the parish school they already attend. They could not. While the case was making its way through the courts, one parish preschool that primarily served low-income Catholic families had to close its doors. Down the block, somewhere in Colorado, a same-sex couple read about the program, saw the nondiscrimination rule, and thought: this one is for us. It might not be. It depends on what the Court says next year.
Two families. Two promises. One Constitution.
The answer the Court cannot give us
The justices have kept the case narrow on purpose. Whatever they say about Colorado’s exemptions, they will not be saying, plainly, what religious freedom requires when honoring it costs LGBTQ families something real, and what nondiscrimination requires when enforcing it means closing religious communities out of public life.
There is a part of me that wishes they would just answer it. Pick. Tell us. The deferral is starting to feel like a kind of dishonesty, a way of giving wins to both sides on paper while letting the loss fall, every time, on whichever party drew the unlucky facts.
There is another part of me that is grateful for the deferral. Because the truth is that this conflict, the one between religious traditionalism and LGBTQ equality, is not really a legal conflict. It is a moral and cultural disagreement about what families are, what conscience demands, and how a pluralistic society lives with people whose deepest convictions clash. That kind of question is worked out, in functioning democracies, through legislation and negotiation and accommodation and the slow work of social adjustment. We have done some of that. But increasingly we have outsourced it to nine people in robes who speak in the language of doctrine and precedent.
A ruling in St. Mary that finally answers the underlying question, in either direction, will close some of that space. It will turn what is now a continuing conversation into a fixed legal answer, handed down by a body that one half of the country trusts and the other half does not. Whatever that ruling says, half the country will read it and learn that the Constitution they were taught to believe in does not actually believe in them.
The Court is not going to give us the answer next year. It has already told us so by what it refused to take up. It will give us a narrow ruling on Colorado’s exemption rules, and the larger question will roll forward to the next case, and the case after that, until eventually the off-ramps run out.