Colorado Can't Seem to Stay Out of Constitutional Trouble

Summary

Podcast Summary: Breakpoint – "Colorado Can't Seem to Stay Out of Constitutional Trouble"

Host: John Stonestreet (Colson Center)
Date: May 6, 2026

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Episode Overview

In this episode, John Stonestreet discusses the U.S. Supreme Court’s upcoming hearing of St. Mary Catholic Parish v. Roy, another First Amendment case arising from Colorado. Stonestreet explores how Colorado's so-called universal preschool program (UPK) imposes requirements that effectively exclude religious preschools unless they compromise their faith-based admissions policies. Framed by a Christian worldview, the episode critiques Colorado's pattern of constitutional missteps regarding religious freedom, highlighting broader implications for religious liberty and the Supreme Court's shifting jurisprudence.

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Key Discussion Points and Insights

1. Background on the Colorado UPK Law

• Colorado's universal preschool program (UPK) aims to provide state-funded preschool options for parents, allowing selection from public or private providers ([00:15]).
• Religious schools are permitted to participate only if they agree to a non-discrimination policy covering race, religion, sexual orientation, gender identity, income, and disability ([00:28]).
• Stonestreet critically examines the law’s actual effect:

  "Though this may sound like an everybody welcome kind of policy, it's not in practice." — John Stonestreet [00:43]

2. Selective Exceptions and Religious Exclusion

• While Colorado grants exceptions for schools that wish to prioritize children based on race, LGBTQ status, low income, or disabilities, no exception is made for religious affiliations ([00:51]).
• Effect: Catholic (or any religious) schools cannot lawfully prefer families aligned with their faith; this applies broadly—Evangelical, Jewish, Orthodox, and other religiously selective institutions face exclusion ([01:08]).
• Preschools participating in UPK cannot ask families to support the school's religious beliefs on sex, gender, or marriage ([01:19]).

3. Religious Freedom at Stake

• Colorado frames its rule as neutral, but Stonestreet challenges this:

  "Colorado portrays its rule as general and neutral, but in reality, it specifically fences out providers of traditional religious faith unless these schools surrender what their faith teaches about crucial moral issues." — John Stonestreet [01:32]

• Practical burden: Religious families must choose between public funding (at the cost of their beliefs) or paying private tuition for faith-aligned schools ([01:44]).

  "Making people of faith pay more to choose a preschool that fits their family is not religious neutrality. It's religious discrimination." — John Stonestreet [01:53]

4. Legal Precedents and the Supreme Court’s Approach

• Stonestreet references Employment Division v. Smith (1990), a precedent allowing neutral laws of general applicability to override religious exercise ([02:05]).
• He notes the Court has been "steadily chipping away" at this precedent without directly overturning it.
• Notable Supreme Court reversals of Colorado:
  • Cake artists
  • Web designers
  • Talk therapists
    All previously coerced to act against their beliefs under state law ([02:44]).

  "The Supreme Court has firmly rejected the state's attempts to punish and coerce speech... in service of the state's pro LGBT agenda." — John Stonestreet [02:49]

• Reference to Mahmoud v. Taylor (2025): The Court affirmed that even neutral laws must respect parental rights in the religious education of their children ([02:30]).

5. Colorado’s "Losing Streak" and Hopes for the Future

• Stonestreet points out Colorado's repeated failures before the Supreme Court in First Amendment cases ([03:04]).

  "It'll be nice when [Colorado] starts adhering to the Constitution, but in the meantime, we can hope and pray this case will make them 0-4 at the High Court." — John Stonestreet [03:13]

• The central contention is that Colorado’s posture forces religious institutions to abandon core convictions or be financially penalized, violating principles of religious liberty.

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Notable Quotes & Memorable Moments

• On the illusion of neutrality:
  "Though this may sound like an everybody welcome kind of policy, it's not in practice." — John Stonestreet [00:43]

• On religious discrimination:
  "Making people of faith pay more to choose a preschool that fits their family is not religious neutrality. It's religious discrimination." — John Stonestreet [01:53]

• On Colorado’s record before the Supreme Court:
  "If you haven't noticed, Colorado is on quite a losing streak at the Supreme Court." — John Stonestreet [02:44]

• Closing sentiment:
  "It'll be nice when [Colorado] starts adhering to the Constitution, but in the meantime, we can hope and pray this case will make them 0-4 at the High Court." — John Stonestreet [03:13]

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Key Timestamps for Important Segments

• 00:01–00:28 – Introduction and overview of St. Mary Catholic Parish v. Roy and the UPK Program
• 00:28–01:19 – Discrimination clause and its implications for religious schools
• 01:19–01:53 – The burden on religious institutions and families
• 02:05–02:44 – Legal precedents and Court's evolving stance
• 02:44–03:13 – Colorado's track record and closing reflections

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Tone and Language

John Stonestreet adopts a direct, critical, and advocacy-driven tone. He blends legal analysis with faith-based reasoning, consistently urging for protection of religious liberty and constitutional adherence.

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Summary co-authored by John Stonestreet and Ian Speer. For more resources or to share this commentary, visit breakpoint.org.

Transcript

[A]

Welcome to breakpoint, a daily look at an ever changing culture through the lens of unchanging truth. For the Colson Center, I'm John Stonestreet. Well, recently the U.S. supreme Court agreed to hear yet another First Amendment case arising out of Colorado. St. Mary Catholic Parish v. Roy involves a law that excludes Catholic and other religious institutions from participating in the state's so called universal preschool program, or upk. UPK pays for parents to send their children to a Colorado preschool of their choice, either public or private. The goal is to expand educational choice, allowing parents to choose from a broad range of providers based on their unique needs and values. Religious schools can participate in upk, but only if they agree to what Colorado calls a non discrimination requirement, which tells schools they must provide families an equal opportunity to enroll regardless of race, religious affiliation, sexual orientation, gender identity, income level or disability. Though this may sound like an everybody welcome kind of policy, it's not in practice. The state grants numerous exceptions allowing preschools to prefer children of color or the LGBTQ community or low income families or children with disabilities, to cite just a few examples. But there is one exception that Colorado clearly will not grant any religious one. So a Catholic preschool that wants to prefer Catholic families cannot participate in upk. And the same is true of Evangelical, Christian, Orthodox, Jewish, or other providers who are religiously selective about which families they enroll. And equally troubling, participating preschools cannot ask families to support the school's religious views or on sex, gender or marriage. That, Colorado says, is sexual orientation and gender identity discrimination. Now, Colorado portrays its rule as general and neutral, but in reality, it specifically fences out providers of traditional religious faith unless these schools surrender what their faith teaches about crucial moral issues. As such, the state's imposing a burden on religious families who want a preschool that aligns with their own faith and values either choose one that shares the government's pro LGBT views or pay out of pocket. Making people of faith pay more to choose a preschool that fits their family is not religious neutrality. It's religious discrimination. And cases like this will keep coming to the Supreme Court, at least until IT overturns its 1990 decision in employment Division v. Smith that allows government to impose burdens on religious exercise. And as long as it's pursuing a neutral policy that's generally applicable, the Court will not be reconsidering Smith in this particular case, but it has been steadily chipping away at the precedent set by it. For example, in recent cases, the Court clarified that government cannot exclude religious practitioners from accessing public benefits on the same terms as everyone else. And just last year the court decided in Mahmoud v. Taylor that even neutral laws must give way to parents rights to to ensure their children's religious education. And by the way, if you haven't noticed, Colorado is on quite a losing streak at the Supreme Court. In First Amendment cases, the Supreme Court has firmly rejected the state's attempts to punish and coerce speech from cake artists, web designers and talk therapists in service of the state's pro LGBT agenda. So St. Mary Catholic parish v. Roy is just another example from for the High Court to protect the rights of people and institutions of faith in that state. And Colorado, of course, is welcome to start adhering to the Constitution at any time. It'll be nice when that happens, but in the meantime, we can hope and pray that this case will make them 04 at the high Court for the Colson Center, I'm John Stonestreet with Breakpoint. Today's Breakpoint was co authored by Ian Speer. If you're a fan of Breakpoint, leave us a review wherever you download your podcast. And for more resources or to share this commentary with others, go to breakpoint.org

[B]

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