✏️ Legal Pad
Universal, With an Asterisk
Colorado (a state I have great affection for) says it gives every family fifteen hours a week of free preschool. Lisa Sheley, a Denver-area mother of seven, wrote in Thursday's Journal that the state forgot about hers. Her kids go to the preschool at St. Mary Catholic Parish in Littleton, and Colorado kicked St. Mary and the other thirty-three Catholic preschools in the Archdiocese of Denver out of the Universal Preschool Program before it ever opened. On November 3, Election Day, the Supreme Court hears St. Mary Catholic Parish v. Roy, No. 25-581.
The rule at issue is Colorado's "equal opportunity" mandate: a participating preschool can't turn away a child based on, among other things, the child's or the family's sexual orientation or gender identity. The Catholic schools ask enrolling families to support Church teaching on marriage and gender. Colorado called that discrimination and showed them the door.
Here's the part that makes this a case instead of a complaint. Colorado hands out exceptions to its own mandate like Halloween candy. A preschool can serve only low-income families. Only children with disabilities. Only children whose families get housing assistance. Only employees' kids, siblings, prior enrollees, or residents of a particular subdivision. More than 1,000 of the roughly 2,000 participating preschools use at least one of these preferences, and the program's own director testified that the catchall could cover a preschool just for gender-nonconforming children or children of color. Everybody gets a carve-out except the Catholics.
The law: Employment Division v. Smith, 494 U.S. 872 (1990), says a neutral law of general application survives even when it burdens religion. Fulton v. City of Philadelphia, 593 U.S. 522 (2021), says a law isn't generally applicable when the government keeps discretion to grant exemptions, and Tandon v. Newsom, 593 U.S. 61 (2021), says the same when comparable secular conduct gets better treatment than religious conduct. Carson v. Makin, 596 U.S. 767 (2022), says that once a state funds private education, it can't exclude schools because of their religious exercise.
After a three-day bench trial, the district court mostly sided with Colorado. The Tenth Circuit affirmed on September 30, 2025, reasoning that Carson only applies when a state excludes religion by name, and that an income or disability preference isn't "comparable" to a religious admissions policy. The Court granted cert on April 20 on exactly those two questions.
My read: Colorado loses. Count the votes. Trinity Lutheran, Espinoza, Fulton, Carson, and last year's Mahmoud v. Taylor. A state that lets a preschool limit enrollment to housing-voucher families while banning one that limits enrollment to practicing Catholics is going to have a long morning at the lectern. The real question is how broad the opinion runs. If any secular exemption triggers strict scrutiny, every state benefit program with a nondiscrimination string attached is suddenly in play.
Closer to Home: South Carolina's Constitution flatly bars public money "for the direct benefit of any religious or other private educational institution." S.C. Const. art. XI, § 4. That's the clause our Supreme Court used, 3-2, to strike the private-tuition piece of the Education Scholarship Trust Fund in Eidson v. S.C. Dep't of Educ., and the General Assembly spent 2025 rewriting the program to route around it. Meanwhile our free 4K program, First Steps, already partners with faith-based centers and nobody has sued. North Carolina went the other direction entirely: Opportunity Scholarships are open to every family, most recipients attend religious schools, and the state Supreme Court blessed it 4-3 in Hart v. State. Whatever the Court says about Colorado will land differently on each side of the state line.
💡 Sidebar
Lawyer Trick No. 2: Tell Them the Truth, Especially When It Hurts
Last month was No. 1: Don't Be a Liar. This is the companion piece, and it's harder. Tell your client what they need to hear, not what they want to hear.
I had a client who got molly whopped by his manager at work. On first blush, great case, right? Well, the further we got into it, the worse it got. My guy is on video asking his manager to step outside, gets fired, and is then caught on the same video calling the manager things that would make your grandmother blush. Should the manager have hit him? Absolutely not. And he said as much in his deposition. He was honest, contrite, and straightforward. My guy? He was none of those things.
Here's what nobody tells you in law school: juries don't give money to people they don't like. They just don't. A civil jury is twelve strangers deciding how many dollars they care about you, and if the answer is "not much," the verdict says so no matter what the MRI shows. The law says damages follow the injury. The jury box has shown me that damages follow the person. It's not fair, it's not in the jury charges, but it's been true in every courthouse where I've tried cases.
So I told him. Not "the defense is going to try to paint you as potentially problematic." I said: you're unlikable, and at least one person on that jury is going to say "good" when they see that video, and that's all it takes. Then I tried to outline a way around it, however improbable.
He didn't enjoy that conversation and that's fine. The alternative is nodding along for two years, telling him what he wants to hear, and then explaining at mediation why the offer is a third of the number we'd been tossing around. That conversation is worse, and by then it's too late to fix anything.
Clients hire us for judgment, not comfort. As the line goes, “do you want comfort, or solutions?” A doctor who won't tell you the lump is a problem isn't being kind. Say what they need to hear, say it early, and say it to their face. You’ll never get thanked and sometimes you’ll get fired for it, but that’s part of the job. Do hard things.
⚖️ Closing Arguments
It's Not Hard to Not Be Inconsiderate (Alternative: It's Easy to be Considerate)
One of my favorite columnists, Andy Kessler, asked in Monday's piece whether politeness is dead. He'd spent two hours on a plane next to a woman dictating text messages out loud ("Don't forget to buy organic blueberries exclamation point") and concluded we're too deep in the age of me, me, me to bother with common decency anymore.
He's not wrong, and the Sidebar is why I care about it professionally. Likability isn't a personality trait you're born with. It's a habit (that my family says I don't have). It's the sum of a thousand small moments where you either thought about existing in the common areas of humanity, or you didn’t. Jurors can smell the difference, and so can everyone else. It's a great litmus test.
The good news is that none of it’s hard. So here's a starter kit:
Don't talk on speakerphone while you walk around the grocery store. Nobody in produce needs to know which guy your sister is dating this week. Don't hock a loogie on a public sidewalk. Or anywhere for that matter. Headphones are ubiquitous these days. If you absolutely need to watch that Bobby Flay clip in a public space, use them. Return the shopping cart. It's forty feet and most of you could use the steps. Hold the door, and when somebody holds it for you, say 'thank you' and then turn around to see if there's someone behind you. Let people off the elevator before you get on, same thing on the damn Atlanta Plane Train. The left lane on every highway in these United States is for passing. If you are not actively passing a car, do not use the PASSING LANE. If you're going to be late, call before you're late, not after. Better still, maybe be a functional adult and don’t be late? Stop taking pictures of your food in restaurants, no one cares. The waiter's name is not a raised hand and aggressive eye contact. Learn it. Pick up after your dog. Wear shoes on the plane (wild that I had to include this). If you bump into someone, say "I'm so sorry!" If they bump into you, say "I'm so sorry!" anyway. Write the thank-you note. Ask a question, then actually listen to the answer without counting the seconds until you can talk about yourself. Don't tip on the stupid flip around machine, but when the waitress brings your three-year-old a cup with a lid without being asked, she gets 30%.
DM me additions to this list. It’s something we could all benefit from.
Court is in recess- see you next Friday.
