Amicus Curiae Brief — St. Mary Catholic Parish, Littleton, Colorado, et al., Petitioners v. Lisa Roy, in Her Official Capacity as Executive Director of the Colorado Department of Early Childhood, et al.

No. 25-581

In the Supreme Court of the United States

________________

ST. MARY CATHOLIC PARISH, LITTLETON, COLORADO,

ET AL.,

v.

Petitioners,

LISA ROY, IN HER OFFICIAL CAPACITY AS EXECUTIVE

DIRECTOR OF THE COLORADO DEPARTMENT OF EARLY

CHILDHOOD, ET AL.,

________________

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

________________

BRIEF FOR AMICUS CURIAE UNITED STATES

CONFERENCE OF CATHOLIC BISHOPS

SUPPORTING PETITIONERS

________________

DREW F. WALDBESER

SCOTT A. KELLER

DANIELLE K. GOLDSTEIN

Counsel of Record

LEHOTSKY KELLER COHN LLP JONATHAN E. DEWITT

LEHOTSKY KELLER COHN LLP

3280 Peachtree Road NE

200 Massachusetts Ave. NW

Atlanta, GA 30305

Suite 700

MARK M. ROTHROCK

Washington, DC 20001

LEHOTSKY KELLER COHN LLP (512) 693-8350

scott@lkcfirm.com

8513 Caldbeck Drive

Raleigh, NC 27615

Counsel for Amicus Curiae

TABLE OF CONTENTS

Table of Authorities .................................................... ii

Interest of Amicus Curiae .......................................... 1

Summary of Argument ............................................... 2

Argument .................................................................... 4

I.

This Court’s review is necessary to prevent

circumvention of its decisions in Carson,

Espinoza, and Trinity Lutheran. ........................ 4

II. Without review, other states and cities may

adopt similar restrictions, which will greatly

harm those that rely on faith-based social

services. .............................................................. 12

A. Colorado is not alone in adopting facially

neutral laws that punish religious

exercise in practice. .................................... 12

B. If Catholic service organizations are

driven from the public square, the harm

to communities most in need would be

immense. ..................................................... 15

Conclusion................................................................. 20

(i)

ii

TABLE OF AUTHORITIES

Page(s)

Cases

303 Creative LLC v. Elenis,

600 U.S. 570 (2023) .............................................. 12

Agency for Int’l Dev. v.

All. for Open Soc’y Int’l, Inc.,

570 U.S. 205 (2013) .............................................. 11

Bowen v. Roy,

476 U.S. 693 (1986) ................................................ 7

Carson v. Makin,

596 U.S. 767 (2022) ............ 1, 2, 3, 5, 7, 8, 9, 11, 13

Cath. Charities Bureau, Inc. v.

Wis. Lab. & Indus. Review Comm’n,

605 U.S. 238 (2025) ................................................ 6

Church of Lukumi Babalu Aye, Inc. v.

City of Hialeah,

508 U.S. 520 (1993) .................................. 3, 7, 8, 12

Crosspoint Church v. Makin,

719 F. Supp. 3d 99................................................ 13

Espinoza v. Mont. Dep’t of Revenue,

591 U.S. 464 (2020) .............................. 1, 2, 5, 6, 10

Fulton v. City of Phila.,

2018 WL 11376235 (E.D. Pa. May 16, 2018)................. 17

iii

Fulton v. City of Philadelphia,

593 U.S. 522 (2021) .............................................. 14

Gillette v. United States,

401 U.S. 437 (1971) ................................................ 7

Masterpiece Cakeshop, Ltd. v.

Colo. C.R. Comm’n,

584 U.S. 617 (2018) .............................................. 12

Nat’l Rifle Ass’n v. Vullo,

602 U.S. 175 (2024) ................................................ 7

St. Dominic Academy v. Makin,

744 F. Supp. 3d 43 (D. Me. 2024) .................... 3, 13

State v. Arlene’s Flowers, Inc.,

441 P.3d 1203 (Wash. 2019)................................. 14

Thomas v. Review Bd. of Ind. Emp.

Sec. Div.,

450 U.S. 707 (1981) ............................................ 5, 7

Trinity Lutheran Church of Columbia, Inc.

v. Comer,

582 U.S. 449 (2017) .............................. 1, 2, 5, 9, 10

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) .............................................. 14

Walz v. Tax Comm’n of City of N.Y.,

397 U.S. 664 (1970) ................................................ 8

Wisconsin v. Yoder,

406 U.S. 205 (1972) ................................................ 7

iv

YU Pride All. v. Yeshiva Univ.,

180 N.Y.S.3d 141 (N.Y. App. Div. 2022) ................. 13

Other Authorities

2021–2022 Highlights, NCEA,

https://perma.cc/6Z2M-ZRX7 ............................... 16

Aaron Tang, Opinion, There’s a Way to

Outmaneuver the Supreme Court,

and Maine Has Found It,

N.Y. TIMES (June 23, 2022),

https://perma.cc/L36M-GKRT .............................. 13

Anna Faria & Grant Clayton, Fruits of

the Vine: The Economic Impact of the

Catholic Church in Minnesota (Feb.

2025), https://perma.cc/PA3Y-S9UV.................... 19

Brian J. Grim & Melissa E. Grim, Belief,

Behavior, and Belonging: How Faith

Is Indispensable in Preventing and

Recovering from Substance Abuse 58

J. Religion & Health 1713 (2019). ....................... 18

Brian J. Grim & Melissa E. Grim, The

Socio-economic Contribution of

Religion to American Society: An

Empirical Analysis 12 Interdisc. J.

Rsch. on Religion 2 (2016).................................... 17

Cath. Charities, Archdiocese of N.Y.,

2023 Annual Report: Charity in

Action, https://perma.cc/7FE8-TDXS................... 17

v

Cath. Charities USA, Pathways

Forward: 2024 Annual Report,

https://perma.cc/PFY3-JZSY ................................ 16

Cath. Relief Servs., 2024 Annual Report

(2025), https://perma.cc/RD3W-5GQC................. 15

Catholic Health Care in the United

States, CHA (Apr. 2025),

https://perma.cc/4XPE-L565 ................................ 16

Edwin I. Hernández et al., Gatherings of

Hope: How Religious Congregations

Contribute to the Quality of Life in

Kent County (Nov. 2008),

https://perma.cc/D7YC-EZT9 ............................... 18

High School Graduation Rates, Inst. of

Educ. Scis. (May 2024),

https://perma.cc/T2WN-Z6EF .............................. 16

Nat’l Cath. Educ. Ass’n, U.S. Catholic

School Data (2025)

https://perma.cc/6PG9-297Y ................................ 16

Pope Benedict XVI, Deus Caritas Est ¶

22 (2005), https://perma.cc/L4GSGGS6 ..................................................................... 15

Quentin Wodon, Catholic Higher

Education in the United States:

Exploring the Decision to Enroll from

a Student’s (or a Student Advisor’s)

Point of View, 13 Religious (Special

Issue) 7 (2022) ...................................................... 20

vi

Ram A. Cnaan, Jill W. Sinha &

Charlene C. McGrew, Congregations

as Social Service Providers: Services,

Capacity, Culture, and

Organizational Behavior 28 Admin.

Soc. Work 47 (2004).............................................. 18

Stephen V. Monsma, Pluralism and

Freedom: Faith-Based Organizations

In a Democratic Society (2012). ..................... 15, 20

Thomas C. Berg, Progressive Arguments

for Religious Organizational

Freedom: Reflections on the HHS

Mandate, 21 J. Contemp. Legal

Issues 279 (2013) .................................................. 17

U.S. Catholic Higher Education Data,

Ass’n of Cath. Colls. & Univs.,

https://perma.cc/SW6C-7QCA .............................. 19

INTEREST OF AMICUS CURIAE

Amicus Curiae the United States Conference of

Catholic Bishops (“USCCB”) is a nonprofit religious

organization dedicated to promoting and carrying out

the Catholic faith in the United States and abroad. 1

The USCCB’s members are the active Catholic

Bishops in the United States. The USCCB works

alongside the bishops of the Catholic Church to

support their ministries and pastoral calling in

diverse areas including the free expression of ideas,

religious liberty, and the protection of the rights of

parents and children.

This case provides the Court with a needed

opportunity to clarify the principles established in

Carson v. Makin, 596 U.S. 767 (2022), Espinoza v.

Mont. Dep’t of Revenue, 591 U.S. 464 (2020), and

Trinity Lutheran Church of Columbia, Inc. v. Comer,

582 U.S. 449 (2017). In each case, the USCCB filed

amicus briefs arguing that the First Amendment

prohibits governments from enacting laws that

disqualify religious observers and organizations from

generally available public benefits solely because of

their religious character or exercise. See Br. of Amicus

USCCB, et al., Carson v. Makin, No. 20-1088 (U.S.

Sept. 10, 2021); Br. of Amicus USCCB, et al., Espinoza

v. Mont. Dep’t of Revenue, No. 18-1195 (U.S. Sept. 18,

1 In accordance with Rule 37.6, no counsel for any party has

authored this brief in whole or in part, and no person or entity

other than the USCCB, its members, or its counsel made a

monetary contribution to the preparation or submission of this

brief. Amicus Curiae provided notice of its intent to file this brief

to counsel of record for both parties at least 10 days before the

brief’s due date. See Sup. Ct. R. 37.2.

(1)

2

2019); Br. of Amicus USCCB, et al., Trinity Lutheran

Church of Columbia, Inc. v. Pauley, No. 15-577 (U.S.

Apr. 21, 2016). This Court agreed.

The decision below, however, upholds a facially

neutral statute that in practice denies Catholic

preschools access to a state-run tuition assistance

program solely because those schools adhere to

Catholic doctrine about human sexuality. If that

decision stands, it will provide a roadmap for

governments to circumvent this Court’s decisions,

directly threatening the Free Exercise rights of

religious adherents and organizations. The USCCB

has a keen interest in avoiding that result.

SUMMARY OF ARGUMENT

This Court should grant review to correct the

Tenth Circuit’s misapplication of Carson, Espinoza,

and Trinity Lutheran. Colorado has disqualified

Catholic preschools from participation in the State’s

universal preschool program solely because of their

adherence to Catholic doctrine. That violates this

Court’s precedents.

The government may not deny religious entities

the right to participate in an otherwise generally

available public program because of their religious

character or exercise. See Carson, 596 U.S. at 778-80;

Espinoza, 591 U.S. at 475; Trinity Lutheran, 582 U.S.

at 458. That is indisputably true when the program

discriminates on its face against religious institutions.

And, as this Court’s Free Exercise precedents have

long recognized, it is equally true when the law at

issue is facially neutral. “[R]eligious practice” cannot

3

be unconstitutionally “singled out for discriminatory

treatment” through facially neutral “religious

gerrymanders.” Church of Lukumi Babalu Aye, Inc. v.

City of Hialeah, 508 U.S. 520, 534, 538 (1993) (citation

omitted).

The Tenth Circuit permitted exactly that kind of

religious gerrymander. It reasoned that the Colorado

law’s facial neutrality distinguished it from the public

programs at issue in Carson, Espinoza, and Trinity

Lutheran, each of which “explicit[ly]” targeted

religion. Pet.App.21a. If that is enough to distinguish

those precedents, the Free Exercise Clause would be

“reduced to a simple semantic exercise,” easily

circumvented by artful statutory drafting. Carson, 596

U.S. at 784. This Court should grant review to prevent

Carson, Espinoza, and Trinity Lutheran from

becoming “essentially meaningless.” Id.

Absent review, the Tenth Circuit’s decision will

embolden other states and municipalities to

discriminate against religious adherents’ rights by

enacting ostensibly neutral statutes. This case is just

the latest example of a disturbing trend—states and

cities across the country using nondiscrimination

requirements to “covert[ly] suppress[] particular

religious beliefs.” Church of Lukumi Babalu Aye, 508

U.S. at 534 (citation omitted). For example, Maine has

openly used this strategy to end-run this Court’s

decision in Carson. See St. Dominic Academy v.

Makin, 744 F. Supp. 3d 43 (D. Me. 2024) (finding no

likelihood of success in a challenge to Maine’s revived

tuition program, which now imposes a facially neutral

4

nondiscrimination requirement). This maneuver

corrodes religious liberty. And it flouts this Court’s

First Amendment jurisprudence.

If this trend continues, it will impair the ability of

Catholic organizations and other faith-based service

providers to partner with state and local governments

to serve the public. The resulting harm to the nation’s

social support infrastructure would be immense.

Catholic charitable organizations are a profound force

for good. They provide excellent education, heal the

sick, care for the vulnerable, and feed the hungry.

These and other faith-based organizations collectively

provide billions of dollars in services to those in need

every year. The Court should grant review to ensure

that these service providers can continue providing

vital, irreplaceable services in partnership with the

states while freely exercising their faith.

ARGUMENT

I.

This Court’s review is necessary to prevent

circumvention of its decisions in Carson,

Espinoza, and Trinity Lutheran.

This Court should grant review and clarify that

the Free Exercise Clause does not permit the

government to exclude religious entities from public

programs by adopting facially neutral requirements

that in practice discriminate against people of certain

disfavored faiths.

A. Colorado bars Catholic preschools from

receiving tuition through the State’s universal

preschool program solely because those preschools, in

their admissions processes, adhere to Catholic

5

doctrine regarding human sexuality. That violates

core Free Exercise principles this Court recognized in

Carson, Espinoza, and Trinity Lutheran.

The “Free Exercise Clause” protects “religious

observers against unequal treatment and against laws

that impose special disabilities on the basis of

religious status.” Espinoza, 591 U.S. at 475 (cleaned

up). This bars not only “outright prohibitions” on the

“free exercise of religion,” but also “indirect coercion or

penalties” on free exercise. Trinity Lutheran, 582 U.S.

at 463 (cleaned up). Just as a state may not “regulate

or outlaw conduct because it is religiously motivated,”

it may not require religious schools to “disavow [their]

religious character” in order “to participate in a

government benefit program.” Id. at 461, 463. This

Court has thus found it “‘unremarkable’” that state

laws that “disqualify[] otherwise eligible recipients”

from public funding because of their religious exercise

“trigger[] the most exacting scrutiny.” Espinoza, 591

U.S. at 475 (quoting Trinity Lutheran, 582 U.S. at

462). “[A] person may not be compelled to choose

between the exercise of a First Amendment right and

participation in an otherwise available public

program.” Thomas v. Review Bd. of Ind. Emp. Sec.

Div., 450 U.S. 707, 716 (1981).

Here, Colorado has excluded Catholic preschools

“from [a] generally available public benefit solely

because of their religious character,” thus

“penaliz[ing] the free exercise of religion.” Carson, 596

U.S. at 780 (cleaned up). Those preschools “adhere to

Catholic faith, morals, and the building up of Catholic

6

culture within the school.” Pet.App.11a (cleaned up).

And they “hold a sincere belief that Catholic teaching

requires them to consider the sexual orientation and

gender identity of a student and their parents before

admitting them to a Catholic School.” Pet.App.11a.

(explaining that the Archdiocese that oversees the

preschools “does not recognize same-sex relationships

or transgender status,” and so “enrolling a child of

same-sex parents in a Catholic school is ‘likely to lead

to intractable conflicts’” (citation omitted)). Yet

Colorado’s tuition program has a “nondiscrimination

requirement,” which prohibits the preschools from

considering in their admissions processes the “sexual

orientation [or] gender identity” of any “child or the

child’s family.” Pet.App.6a. The upshot is that these

Catholic preschools, and the parents who wish to

enroll their children in them, receive no tuition

benefits solely because the preschools adhere to

Catholic teaching.

Carson, Espinoza, and Trinity Lutheran forbid

that result. A “State need not subsidize private

education,” but “once a State decides to do so, it cannot

disqualify some private schools solely because they are

religious.” Espinoza, 591 U.S. at 487. Nor may it favor

schools associated with “certain religions” or “sects”

over others because of the “theological lines” they

draw in their religious practice. Cath. Charities

Bureau, Inc. v. Wis. Lab. & Indus. Review Comm’n,

605 U.S. 238, 248-49 (2025).

B. The Tenth Circuit erroneously reached the

opposite conclusion: Because “the nondiscrimination

requirement . . . applies to all preschools regardless of

7

whether they are religious or secular,” Colorado may

exclude Catholic preschools. Pet.App.21a.

That holding could render Carson, Espinoza, and

Trinity Lutheran “essentially meaningless.” Carson,

596 U.S. at 784. The laws at issue in Carson, Espinoza,

and Trinity Lutheran did “explicit[ly]” target religion.

Pet.App.21a. But the First Amendment forbids the

government

from

indirectly

engaging

in

discrimination that it cannot do directly. See Nat’l

Rifle Ass’n v. Vullo, 602 U.S. 175, 190 (2024) (“[A]

government official cannot do indirectly what she is

barred from doing directly.”).

“The Free Exercise Clause protects against

governmental hostility which is masked, as well as

overt.” Church of Lukumi Babalu Aye, 508 U.S. at 534.

The Constitution “forbids” both “subtle departures

from neutrality,” Gillette v. United States, 401 U.S.

437, 452 (1971), and “covert suppression of particular

religious beliefs,” Bowen v. Roy, 476 U.S. 693, 703

(1986). “A regulation neutral on its face may, in its

application, nonetheless offend the constitutional

requirement for governmental neutrality if it unduly

burdens the free exercise of religion.” Review Bd. of

Ind. Emp. Sec. Div., 450 U.S. at 717 (quoting

Wisconsin v. Yoder, 406 U.S. 205, 220 (1972)). In

Church of Lukumi Babalu Aye, for instance, the

discriminatory city ordinance was facially neutral.

But that was “not determinative” because in “effect,”

the

ordinance

accomplished

“a

religious

gerrymander.” 508 U.S. at 534-35 (cleaned up). The

“only conduct” that the ordinance would be enforced

8

against was “the religious exercise of the Santeria

church members.” Id. at 535. That facially neutral

attempt “to suppress the conduct because of its

religious motivation” was unconstitutional. Id. at 538.

Governments may not circumvent Carson,

Espinoza, and Trinity Lutheran through this sort of

“religious gerrymander[],” either. Walz v. Tax Comm’n

of N.Y., 397 U.S. 664, 696 (1970) (Brennan, J.,

concurring). Although each of those cases involved

expressly discriminatory statutes, their reasoning

applies equally to neutrally applicable laws that

discriminate against religion in fact, even if not in

word.

Consider Carson. That case involved a tuitionassistance statute in Maine that imposed a

“requirement that any school receiving tuition

assistance payments must be ‘a nonsectarian school.’”

596 U.S. at 774 (citation omitted). The Court held that

facially discriminatory language triggered strict

scrutiny. Id. at 780-81. But Maine had argued (and the

court below had held) that the statute’s requirement

was properly viewed not as expressly discriminatory,

but as merely providing funding for the “rough

equivalent of [a] public school education that Maine

may permissibly require to be secular.” Id. at 782

(citation omitted).

This Court rejected that reasoning as

incompatible with its “decision in Espinoza.” Id. at

784. It explained that “[b]y Maine’s logic,” the

Montana law at issue in Espinoza could have avoided

strict scrutiny “simply by redefining its tax credit for

9

sponsors of generally available scholarships as limited

to ‘tuition payments for the rough equivalent of a

Montana public education’—meaning a secular

education” Id. at 785. That approach would have been,

on its face, neutral. But the effect would have been to

exclude religious schools “on the basis of their

religious exercise.” Id. at 789. That was impermissible

because the Court’s “holding in Espinoza turned on

the substance of free exercise protections, not on the

presence or absence of magic words” and it “applies

fully whether the prohibited discrimination is in an

express provision” like Maine’s statute or in a facially

neutral “reconceptualization of the public benefit.” Id.

at 785 (emphasis added).

Trinity Lutheran confirms this too. That case

involved a Missouri grant program, which had “a strict

and express policy of denying grants to any applicant

owned or controlled by a church, sect, or other

religious entity.” Trinity Lutheran, 582 U.S. at 455.

The Court applied strict scrutiny to strike down that

program, relying on the “basic principle” that “denying

a generally available benefit solely on account of

religious identity imposes a penalty on the free

exercise of religion.” Id. at 458. Yet Trinity Lutheran

made clear that even “facial[ly] neutral[]” laws could

unconstitutionally “single out the religious for

disfavored treatment,” citing Church of Lukumi

Babalu Aye as an example. Id. at 460-61.

Justice Gorsuch’s concurrence likewise reasoned

that the Free Exercise Clause “guarantees the

free exercise of religion, not just the right to inward

10

belief.” Id. at 469 (Gorsuch, J., concurring). “[T]he

government may not force people to choose between

participation in a public program and their right to

free exercise of religion,” meaning “it should [not]

matter whether we describe the benefit, say, as closed

to Lutherans (status) or closed to people who do

Lutheran things (use),” because “[i]t is free exercise

either way.” Id. (Gorsuch, J., concurring).

The Tenth Circuit defied this clear guidance. It

distinguished Carson, Espinoza, and Trinity Lutheran

because Colorado’s law does not overtly discriminate

against religion. But Colorado’s law excludes Catholic

preschools from funding because of their religious

exercise, disqualifying them solely based on their

religious conduct—adherence to traditional religious

beliefs about human sexuality. Pet.App.6a, 11a.

Colorado’s tuition program thus excludes high-quality

Catholic preschools from a generally available tuitionassistance program simply because those schools are

living out foundational Catholic doctrines by “act[ing]

on those beliefs outwardly and publicly.” Espinoza,

591 U.S. at 510 (Gorsuch, J., concurring). That

violates

the

Free

Exercise

Clause.

“The

Constitution . . . protects not just the right to be a

religious person, holding beliefs inwardly and secretly;

it also protects the right to act on those beliefs

outwardly and publicly.” Id. (Gorsuch, J., concurring).

This case presents the same constitutional defect

identified in Carson: A gerrymandered eligibility

criterion that permits participation by some religious

actors but excludes others who hold beliefs the state

11

disfavors. Like Maine’s “rough equivalent of public

education” argument, the Colorado nondiscrimination

mandate here is facially neutral but operates to

disqualify schools whose religious exercise conflicts

with the State’s preferred orthodoxy. Carson, 596 U.S.

at 785. Both rules have legitimate secular targets but

also target constitutionally protected religious

conduct. See id. Trinity Lutheran and Espinoza make

clear that religious entities cannot be excluded from

generally available public programs based on religious

status. Carson then confirmed that this protection

extends to religious exercise, not merely inward belief.

In Carson, that exercise was teaching a Catholic

curriculum. Here, it is St. Mary’s implementation of

an admissions process consistent with its Catholic

beliefs on human sexuality for the ultimate purpose of

facilitating an environment where the school can

teach its faith with integrity. Under Carson’s logic, the

State cannot limit participation in the universal

preschool program on the condition that St. Mary

abandon its free exercise of religion.

Yet under Colorado’s reasoning, any state could

“manipulate” the scope “of a particular program” to

implicitly exclude religious entities. Id. at 784. That

would “reduce[]” the “First Amendment” to a “simple

semantic exercise.” Id. (quoting Agency for Int’l Dev. v.

All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 215 (2013)).

This Court’s review is urgently needed to prevent that.

12

II. Without review, other states and cities may

adopt similar restrictions, which will

greatly harm those that rely on faith-based

social services.

If the Tenth Circuit’s decision stands, it will

embolden other states and cities to violate religious

adherents’ rights, leaving communities across the

country worse off. This is already happening. Without

this Court’s intervention, the resulting harm will be

immense.

A. Colorado is not alone in adopting

facially neutral laws that punish

religious exercise in practice.

The Colorado law at issue exemplifies a troubling

trend. States and municipalities across the country

are using facially neutral nondiscrimination

requirements to “covert[ly] suppress[] . . . particular

religious beliefs” while avoiding public statements of

religious animus. Church of Lukumi Babalu Aye, 508

U.S. at 534 (citation omitted). This Court should stop

this trend in its tracks.

Colorado itself has repeatedly wielded facially

neutral nondiscrimination requirements to quash

faithful religious exercise. See, e.g., Masterpiece

Cakeshop, Ltd. v. Colo. C.R. Comm’n, 584 U.S. 617,

640 (2018); see also 303 Creative LLC v. Elenis, 600

U.S. 570, 602-03 (2023) (holding Colorado’s AntiDiscrimination Act violated Christian website

designer’s right not to speak a message with which she

13

disagreed). Yet those losses before this Court have not

deterred it from trying again.

Nor is Colorado alone. Maine has revived the

town-tuition program this Court struck down in

Carson on purportedly neutral, antidiscrimination

terms. See St. Dominic Acad., 744 F. Supp. 3d 43 (D.

Me. 2024); Crosspoint Church v. Makin, 719 F. Supp.

3d 99. Now, if religious schools want to accept public

funding, they must admit students with beliefs about

“their sexual orientation, gender identity, or religion”

that conflict with the school’s deeply held religious

values. Crosspoint Church, 719 F. Supp. 3d at 117.

Maine’s Speaker of the House openly described the

change as a direct response to “the ludicrous decision

from the far-right SCOTUS.” Id. at 107 (citation

omitted). And commentators have held up this

“[]maneuver” as “a model for lawmakers” to

“outmaneuver the [Supreme C]ourt and avoid the

consequences of a” loss. Aaron Tang, Opinion, There’s

a Way to Outmaneuver the Supreme Court, and Maine

Has Found It, N.Y. TIMES (June 23, 2022),

https://perma.cc/L36M-GKRT.

The list of examples goes on. New York City’s

Human Rights Law’s “public accommodations

provision” has been used to force a Jewish university

to recognize an LGBTQ group as an official student

organization, in violation of its sincerely held religious

values. YU Pride All. v. Yeshiva Univ., 180 N.Y.S.3d

141, 144-46 (N.Y. App. Div. 2022). The Washington

Supreme Court has interpreted the state’s

nondiscrimination law to require a Christian florist to

14

create arrangements celebrating a same-sex wedding

in violation of her sincerely held beliefs. State v.

Arlene’s Flowers, Inc., 441 P.3d 1203 (Wash. 2019).

And, as this Court well knows, Philadelphia

attempted to exclude Catholic foster care agencies

from serving the city because of their religious beliefs.

Fulton v. City of Phila., 593 U.S. 522, 530-31 (2021).

This trend is corrosive. As these examples

demonstrate, state and local governments often use

generally applicable nondiscrimination laws not to

root out invidious discrimination, but to “prescribe

what shall be orthodox” in “matters of opinion,”

including religious doctrine. W. Va. State Bd. of Educ.

v. Barnette, 319 U.S. 624, 642 (1943). This case proves

the point. Colorado admits it has never received a

single complaint about discrimination at a Catholic

preschool. Pet.App.141a. And that makes sense—

nothing in the universal tuition program requires

families who disagree with the Catholic Church’s

views to send their children to St. Mary. Same-sex

families are free to use the tuition program funds at

any school they wish. Barring St. Mary from the

program thus forecloses access to a school with

decades of successful performance for many parents

seeking preschool education for their families,

providing Denver residents nothing in return.

Nothing—except sending the unconstitutional

message that Colorado condemns St. Mary’s sincerely

held religious views about sexuality, marriage, and

the family.

15

B. If Catholic service organizations are

driven from the public square, the harm

to communities most in need would be

immense.

If this trend goes unchecked, it will deny Catholic

organizations and other faith-based service providers

access to the funds necessary to provide services to the

public. And if that happens, “a major portion of the

nation’s social safety net of human services would be

lost.” 2

1. Catholic organizations are a profound force for

good. Catholic institutions rank among the largest and

most essential providers of human services both

globally and in the United States. As Pope Benedict

XVI wrote, “The Church cannot neglect the service of

charity any more than she can neglect the Sacraments

and the Word.” 3

In 2024, Catholic Relief Services served 198

million people in 134 countries on an annual operating

revenue of roughly $1.3 billion. 4 In the same year,

Catholic Charities USA, the national membership

2 Stephen V. Monsma, Pluralism and Freedom: Faith-Based

Organizations In a Democratic Society 16 (2012).

3 Pope Benedict XVI,

Deus Caritas Est ¶ 22 (2005),

https://perma.cc/L4GS-GGS6.

4 Cath. Relief Servs., 2024 Annual Report 4, 22 (2025),

https://perma.cc/RD3W-5GQC.

16

organization for Catholic Charities across the country,

served 16 million people in the United States. 5

Catholic schools enroll over 1.6 million students

in almost 6,000 schools across the country. Those

students score higher in math and reading on the

National Assessment of Educational Progress scale

than public school students. 6 They also graduate at a

high rate. For the 2021-2022 school year, Catholic

high schools had a graduation rate of 98%, 7 eleven

percent higher than the national average of 87%. 8

Catholic charitable organizations heal the sick

and care for vulnerable children. Catholic hospitals

across the country help millions of patients each year,

treating nearly 19 million emergency room visitors

and nearly 99 million outpatient visitors. 9 Each day,

more than one in seven patients are cared for in a

Catholic hospital. 10

5 Cath. Charities USA, Pathways Forward: 2024 Annual Report

6, https://perma.cc/PFY3-JZSY.

6 Nat’l Cath. Educ. Ass’n, U.S. Catholic School Data (2025),

https://perma.cc/6PG9-297Y (click “Download the 2024-2025

Infographic”).

7

2021–2022 Highlights, NCEA, https://perma.cc/6Z2M-ZRX7.

8 High School Graduation Rates, Inst. of Educ. Scis. (May

2024), https://perma.cc/T2WN-Z6EF.

9 Catholic Health Care in the United States, CHA (Apr. 2025),

https://perma.cc/4XPE-L565.

10 Id.

17

And Catholic foster care and adoption

organizations place thousands of children in

permanent homes, especially “hard-to-place children

with special needs.” 11 In 2017, Catholic Social Services

in Philadelphia served “more than 120 children in

foster care,” “supervise[d] around 100 different foster

homes,” and “served more than 2,200 different at-risk

children.” Compl. ¶ 3, Fulton v. City of Phila., 2018

WL 11376235, (E.D. Pa. May 16, 2018).

Without these Catholic organizations, there

would be major gaps in social services. In New York,

for instance, the organization Catholic Charities

provides over 10 million meals and serves over 99,000

children every year. 12 The agencies provide day care,

foster care, emergency shelter, counseling, financial

aid, and aid for the mentally ill, refugees,

immigrants, those with special needs, and those with

disabilities. 13

11 Thomas C. Berg, Progressive Arguments for Religious

Organizational Freedom: Reflections on the HHS Mandate, 21 J.

Contemp. Legal Issues 279, 313 (2013).

12 Cath. Charities, Archdiocese of N.Y., 2023 Annual Report:

Charity in Action 4, https://perma.cc/7FE8-TDXS.

13 Id. at 2, 4-5.

18

2. The economic burden of replacing faith-based

human services with alternative providers would be

almost “incalculably large.” 14

Using

conservative

figures,

faith-based

organizations provide billions of dollars in services to

those in need every year. For example, congregationbased substance abuse recovery programs “contribute

up to $316.6 billion in savings to the US economy”

annually. 15 At the local level, the impact of faith-based

organizations is also indispensable. A study of

religious congregations in the Philadelphia area, for

example, found that they provided, collectively, a

quarter of a billion dollars in social services. 16 At that

time, Philadelphia spent approximately $523 million

a year on social services. 17 So roughly “one third of the

[annual] cost to maintain quality of life in

Philadelphia is voluntarily provided by local religious

congregations.” 18 A similar study in Michigan

14 Brian J. Grim & Melissa E. Grim, The Socio-economic

Contribution of Religion to American Society: An Empirical

Analysis, 12 Interdisc. J. Rsch. on Religion 2, 26 (2016).

15 Brian J. Grim & Melissa E. Grim, Belief, Behavior, and

Belonging: How Faith Is Indispensable in Preventing and

Recovering from Substance Abuse, 58 J. Religion & Health 1713,

1737 (2019).

16 Ram A. Cnaan, Jill W. Sinha & Charlene C. McGrew,

Congregations as Social Service Providers: Services, Capacity,

Culture, and Organizational Behavior, 28 Admin. Soc. Work 47,

55 (2004).

17 Id.

18 Id.

19

calculated that the annual replacement value of

human services provided by local congregations was

$95 to $118 million. 19

Catholic charitable organizations, specifically,

also provide billions of dollars of services every year.

A February 2025 study conducted by researchers from

the University of Colorado on the economic impact of

the Catholic Church in Minnesota found that the

“total economic value of Catholic programs” in the

state “is estimated at $5.4 billion.” 20 The study

explains that healthcare institutions run by or

affiliated with the Church generate $3.2 billion,

Catholic schooling contributes $1.4 billion, and church

events generate $56 million, to name just a few

economic effects of the Catholic Church. 21

Catholic colleges and universities across the

country make a similarly strong impact on their

communities. In the fall of 2023, Catholic colleges and

universities enrolled 675,000 students in 230

institutions of higher learning. 22 About 84% of

19 Edwin I. Hernández et al., Gatherings of Hope: How

Religious Congregations Contribute to the Quality of Life in Kent

County 61 (Nov. 2008), https://perma.cc/D7YC-EZT9.

20 Anna Faria & Grant Clayton, Fruits of the Vine: The

Economic Impact of the Catholic Church in Minnesota 5 (Feb.

2025), https://perma.cc/PA3Y-S9UV.

21 Id. at 6.

22 U.S. Catholic Higher Education Data, Ass’n of Cath. Colls.

& Univs., https://perma.cc/SW6C-7QCA (under “Catholic Higher

20

students at Catholic institutions receive some form of

financial aid, averaging almost $24,000 per student in

2022-2023. 23 And graduates of these Catholic

institutions have lower student debt default rates

than the national average. 24

In short, the exclusion of faith-based charities

from public programs both violates the First

Amendment and inflicts “major public policy

consequences.” 25 People in need “would go without

needed services and private secular agencies and

government—which is already under pressure to cut

back on its services to those in need—would have to

scramble in an effort to find some way to make up for

the major gaps now created.” 26 This Court should

grant review to ensure that does not happen.

CONCLUSION

The Court should grant the petition.

Education FAQs,” click “How many Catholic colleges are in the

United States?” and “How many students are enrolled?”).

Id. (under “Catholic Higher Education FAQs,” click “How

much financial aid do students at Catholic institutions typically

receive?”).

23

24 Quentin Wodon, Catholic Higher Education in the United

States: Exploring the Decision to Enroll from a Student’s (or a

Student Advisor’s) Point of View, 13 Religions (Special Issue) 7

(2022).

25 Monsma, supra note 2, at 16.

26 Id.

21

Respectfully submitted,

SCOTT A. KELLER

Counsel of Record

JONATHAN E. DEWITT

LEHOTSKY KELLER COHN LLP

200 Massachusetts Ave. NW

Suite 700

Washington, DC 20001

(512) 693-8350

scott@lkcfirm.com

DREW F. WALDBESER

DANIELLE K. GOLDSTEIN

LEHOTSKY KELLER COHN LLP

3280 Peachtree Road NE

Atlanta, GA 30305

MARK M. ROTHROCK

LEHOTSKY KELLER COHN LLP

8513 Caldbeck Drive

Raleigh, NC 27615

Counsel for Amicus Curiae

DECEMBER 2025