By Joseph C. Stewart

In what seems like a quintessential “Only in America” parody, there is a correlation between unemployment benefits, smoking peyote, and LGBTQ kids — or kids of LGBTQ couples — being allowed enrollment into Catholic Colorado preschools.

Let’s connect the dots.

Recently, the Supreme Court announced it will be taking the case St. Mary Catholic Parish v. Roy this autumn. The gist of the case, if you haven’t already heard, is the Archdiocese of Denver and some accompanying parishes are suing Colorado (specifically, Lisa Roy, head of the Colorado Department of Early Childhood) for revoking the preschools’ state funding because their preschools do not agree to comply with the state’s nondiscrimination laws which would force the schools to allow LGBTQ kids (or kids of LGBTQ parents) into their schools.

The State of Colorado is holding its ruling falls under the Employment Division v. Smith case from 1990. And this is where things get tangled.

Over thirty years ago, in 1989, two employees of a drug rehabilitation clinic in Oregon were fired from their jobs for smoking peyote during a Native American religious ceremony. Because they were fired for smoking peyote, a federal crime, they were denied state unemployment benefits. The two men fought, claiming religious freedom to smoke peyote.

Not surprisingly, the Supreme Court ruled in favor of the Employment Division of Oregon and ruled state governments can enforce a law that applies to everyone — even if it burdens religious practice — so long as the law is neutral and generally applicable; really, a law of neutrality. In other words, no one may consume Schedule I narcotics, regardless of religious motivation.

Seems to make sense.

However, things change — a lot of things.

Now, at the center of the Colorado case are the 1990 neutrality ruling and the Colorado Anti-Discrimination Act (CADA). Under CADA, places of public accommodation must not discriminate against people on the basis of race, religion, or other protected status. CADA was put into law in 1959, and one can guess how many times it mentions sexual preferences or gender identity — zero times.

When Justice Antonin Scalia wrote the majority opinion on the Smith case, the LGBTQ revolution could never have been conceived to be a human reality. Indeed, for most of American legal history, the law assumed stable definitions of sex and family structure.

It was not until a major revision in 2007 that gender identity and sexual orientation were added to CADA. Things changed. Right?

But here is where things have not changed — the Catholic Church has followed its doctrines regarding sexual orientation for 2,000 years. Those doctrines are fundamental beliefs about the biblical creation order. The First Amendment was written in a context where religious belief — particularly within the Christian tradition — was widespread and deeply embedded in public life.

For 200-plus years in America, the state had to prove there was a very strong and essential reason for a law, and that there were no less harmful means to enact that law without infringing on religious freedom. After Smith, courts can skip that whole test, and any law that applies to the land applies to religion.

The question before the court is not whether nondiscrimination matters — it does. The question is whether a neutral law can remain neutral when it conditions participation on the surrender of deeply held religious beliefs.

In 1990, the court found smoking a Schedule 1 drug was illegal, no matter who smoked it and hallucinated.

In 2026, Catholic preschools can get defunded for not refuting their well-established ancient doctrines.

“Congress shall make no law… prohibiting the free exercise (of religion)” — the First Amendment. Can Colorado’s current framework accommodate the very religious commitments the First Amendment was designed to protect?

I believe it fails. But we will find out this fall.

Theology matters, history matters and laws matter.

In a profoundly odd sense, this is how peyote is affecting Catholic preschools in Colorado.

Joseph C. Stewart is, Ph.D., is a researcher in applied theology and a writer in Castle Rock whose work focuses on theology, culture, global affairs and the moral questions shaping public life.