NACo Legal Advocacy: St. Mary’s Catholic Parish v. Roy
Key Takeaways
On April 20, 2026 the U.S. Supreme Court (the Court) agreed to hear St. Mary Catholic Parish, Littleton, Colorado, et al. v. Roy (24-1267), a case that could affect counties’ ability to enforce neutral, generally applicable ordinances in zoning, land use, employment, tax administration, and public health without facing strict-scrutiny challenged under the Free Exercise Clause of the First Amendment that protects religious practice from government interference.
Since Employment Division v. Smith (1990) (Smith), a neutral, generally applicable law, one that does not single out religion and allows no case-by-case secular exceptions, need only survive rational basis review even if it incidentally burdens religious exercise which serves as a doctrinal backbone that lets counties enforce zoning, permitting, employment, tax and public health rules that incidentally touch religious practice without defending every decision under strict scrutiny. Narrowing Smith, even without overruling it, would pull routine local decisions into federal court under a much harder test.
Background
In 2023 Colorado launched a Universal Preschool Program that funds 15 hours a week of free preschool. The program is open to both public and private schools. To participate, a school must confirm that it provides eligible children "an equal opportunity to enroll and receive preschool services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability." Two Catholic parishes, two Catholic parents and the Archdiocese of Denver sued to block the program, arguing that its enrollment requirements conflict with their religious teachings on marriage and gender, in violation of the Free Exercise Clause. The U.S. Court of Appeals for the Tenth Circuit ruled for Colorado on Sept. 30, 2025. The Supreme Court granted review on April 20, 2026, limited to two narrow questions.
The petitioners asked the Court to overrule Smith. The Court declined that question and agreed instead to decide how much a challenger must show to prove that a law does not apply generally, and whether Carson v. Makin (2022) triggers strict scrutiny only when a program explicitly excludes religious institutions or in a broader set of circumstances. Specifically, the Court will decide:
- whether proving a lack of general applicability under Smith requires showing that the government retains unfettered discretion to grant exemptions, or categorical exemptions for identical secular conduct, or whether a law can be found not generally applicable on some lesser showing; and
- whether Carson v. Makin displaces Smith's neutral-and-generally-applicable rule only when the government explicitly excludes religious people or institutions from a program, or more broadly whenever religious exercise is a but-for cause of exclusion.
County Nexus
A broad ruling in this case, for example one holding that any secular exemption or point of emphasis defeats general applicability, could impact everyday county regulation. Local governments have successfully defended zoning and historic preservation ordinances applied to religious property, as well as school entry immunization requirements challenged on religious grounds, as neutral and generally applicable law under the current framework. A broader standard would give challengers in cases like those a materially easier path to strict scrutiny and open up counties to increased litigation. The same argument could be raised against county employment decisions, tax ordinances with hardship exemptions, property tax exemptions, conditional use permitting and county nondiscrimination ordinances with small business exceptions. In each instance the county would carry the burden of satisfying the most demanding standard in constitutional law to defend a decision that ordinarily receives deference.
NACo Advocacy
NACo will be joining the Local Government Legal Center (LGLC) in filing an amicus brief to educate the Court on how counties rely on Employment Division v. Smith to enforce zoning, employment, tax and public health rules that incidentally touch religious practice. The brief will emphasize that even a modest loosening of the general applicability standard would invite Free Exercise challenges across those areas, and that a sweeping ruling could reach much further into county processes and the local regulatory authority that federalism principles protect.
Current Status
The petitioners filed a merits brief on June 25, 2026. The respondents' brief was due Aug. 17, and oral argument is expected during the Court's fall 2026 sitting.
Related News
NACo Legal Advocacy: Suncor Energy v. Boulder County
NACo joined a Supreme Court amicus brief arguing that federal law should not prevent counties from pursuing state-law claims to recover costs associated with local harms.
NACo Legal Advocacy: Grand v. City University Heights
The U.S. Supreme Court will consider whether federal courts may hear certain religious liberty challenges to local zoning decisions before the local land use process reaches a final decision.
NACo Legal Advocacy: Jouppi v. Alaska
On July 20, the U.S. Supreme Court agreed to hear Jouppi v. Alaska (25-246), a case that could affect how state and local governments impose and defend fines and property forfeitures under the Eighth Amendment's Excessive Fines Clause.
Featured Initiative
Supreme Court Advocacy Hub
