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

IN LITTLETON, et al.,

Petitioners,

v.

LISA ROY, IN HER OFFICIAL CAPACITY AS

EXECUTIVE DIRECTOR OF THE COLORADO

DEPARTMENT OF EARLY CHILDHOOD, et al.

Respondents.

_________________________________________________

On Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

_________________________________________________

BRIEF AMICI CURIAE OF

THE NATIONAL LEGAL FOUNDATION,

CONCERNED WOMEN FOR AMERICA,

ILLINOIS FAMILY INSTITUTE, WISCONSIN

FAMILY ACTION, DELAWARE FAMILY POLICY

COUNCIL, CHAPLAIN ALLIANCE FOR

RELIGIOUS LIBERTY, and INTERNATIONAL

CONFERENCE OF EVANGELICAL CHAPLAIN

ENDORSERS

in Support of Petitioners

__________

Steven W. Fitschen

Frederick W. Claybrook, Jr.

James A. Davids

(Counsel of Record)

National Legal Foundation Claybrook LLC

524 Johnston Road

655 15th St., NW, Ste. 425

Chesapeake, Va. 23322

Washington, D.C. 20005

(757) 463-6133

(301) 622-0360

sfitschen@nationallegal

foundation.org

rick@claybrooklaw.com

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

STATEMENTS OF INTEREST ................................. 1

SUMMARY OF THE ARGUMENT ........................... 3

ARGUMENT ............................................................... 4

I. Carson and Its Kin Reject Discrimination

Against Free Exercise by “Pervasively

Sectarian” Schools to Advance “Strict

Separation” ............................................................ 4

A. Mitchell v. Helms Began This Court’s

Retreat from Disqualifying Religious

Institutions from Receipt of Governmental Benefits Due to Their

Pervasively Sectarian Religious

Exercise ............................................................. 4

B. The “Pervasively Sectarian” Test Was

Further Eroded by Decisions Explaining

That Private Choices Determining the

Recipient of Generally Available Public

Funds Eliminate the Applicability of the

Establishment Clause .................................... 11

C. Trinity Lutheran and Espinoza Further

Eroded the Pervasively Sectarian Test ......... 16

D. Carson Completed the Rejection of the

Pervasively Sectarian Test in the Context

of a Religious School’s Receipt of Generally

Available Benefits .......................................... 18

ii

II. The Trinity Lutheran Line of Cases Cannot Be

Avoided by the State Repackaging Anti-religious

Discrimination as Protecting Against

Discrimination of Another Type ......................... 21

CONCLUSION.......................................................... 24

iii

TABLE OF AUTHORITIES

Cases

Agostini v. Felton, 521 U.S. 203 (1997) ...... 6, 7, 11, 12

Aguilar v. Felton, 473 U.S. 402 (1985) ....................... 7

Bates v. Pakseresht, 146 F.4th 772 (9th Cir. 2025)

.......................................................................... 22,23

Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen,

392 U. S. 236 (1968) .............................................. 11

Bowen v. Kendrick, 487 U.S. 589 (1988) .................... 7

Bradfield v. Roberts, 175 U.S. 291 (1899) .............. 5, 8

Carson v. Makin, 596 U.S. 767 (2022).......... 3-4, 18-24

Comm. for Pub. Ed. v. Nyquist,

413 U.S. 756 (1973) ................................................. 7

Comm. for Pub. Educ. & Religious Liberty v.

Regan, 444 U.S. 646 (1980) ..................................... 7

Corp. of Presiding Bishop v. Amos,

483 U.S. 327 (1987) ............................................... 13

Crosspoint Church v. Makin,

719 F. Supp. 3d 99 (D. Me. 2024),

appeal argued, No. 24-1590

(1st Cir., Jan. 7, 2025) .......................................... 21

Employment Div. v. Smith, 494 U.S. 872 (1990) .... 3-4

iv

Espinoza v. Mont. Dept. of Rev.,

591 U.S. 464 (2020) ................ 3, 9-10, 16-19, 22, 24

Everson v. Board of Education,

330 U.S. 1 (1947) ............................................... 4, 6

First Choice Women’s Res. Ctrs., Inc. v.

Davenport, 146 S. Ct. 1114 (2026) ...................... 23

Hunt v. McNair, 413 U.S. 734 (1973) ......................... 7

Lamb’s Chapel v. Ctr. Moriches Union Free Sch.

Dist., 508 U.S. 384 (1993) ...................................... 9

Lemon v. Kurtzman, 403 U.S. 602 (1971) ......... 6-7, 20

Masterpiece Cakeshop, Ltd. v. Colo.

Civ. Rgts. Div., 584 U.S. 617 (2018).................... 22

Meek v. Pittenger, 421 U.S. 349 (1975) ................... 6, 7

Mitchell v. Helms, 530 U.S. 793 (2000) ........4, 7-12, 16

Mueller v. Allen, 463 U.S. 388 (1983) .........7, 12-14, 16

Roemer v. Bd. of Pub. Works of Md.,

426 U.S. 736 (1976)............................................ 6, 7

Rosenberger v. Rector and Visitors of Univ.

of Va., 515 U.S. 819 (1995) .............................. 9, 12

Sch. Dist. of Abington Twp. v. Schempp,

374 U.S. 203 (1963) ............................................. 20

Sch. Dist. of Grand Rapids v. Ball,

473 U.S. 373 (1985)............................................. 6-7

v

State v. Loe, 692 S.W.3d 215 (Tex. 2024) ................. 23

St. Mary Cath. Parish v. Roy,

154 F.4th 752 (10th Cir. 2025) ....................... 22-23

Students for Fair Admission, Inc. v. Pres.

and Fellows of Harvard Coll.,

600 U.S. 181 (2023) .............................................. 24

Trinity Lutheran Church of Colum.,

Inc. v. Comer, 582 U.S. 449

(2017) ..............................................3, 9, 16-19, 21-24

Widmar v. Vincent, 454 U.S. 263 (1981) .............. 9, 13

Witters v. Wash. Dept. of Servs. for Blind,

474 U. S. 481 (1986) ............................. 7, 12, 14, 16

Wolman v. Walter, 433 U.S. 229 (1977) ..................... 7

Zelman v. Simmons-Harris,

536 U.S. 639 (2002)..................................... 7, 11-16

Zobrest v. Catalina Foothills Sch. Dist.,

509 U. S. 1 (1993)....................................7, 13, 15-16

Other Authorities

James A. Davids, Pounding a Final Stake in the

Heart of the Invidiously Discriminatory

“Pervasively Sectarian” Test, 7 Ave Maria L.

Rev. 59 (2008) ........................................................ 7

1

STATEMENTS OF INTEREST 1

The National Legal Foundation (NLF) is a

public interest law firm dedicated to the defense of

First Amendment liberties (including the freedoms of

speech, assembly, and religion) and parental rights.

The NLF and its donors and supporters, in particular

those from Colorado, are vitally concerned with the

outcome of this case because of its effect on religionbased rights.

Concerned Women for America (CWA) is

the largest public policy organization for women in the

United States, with approximately half a million

supporters from all 50 States. Through its grassroots

organization, CWA encourages policies that

strengthen women and families and advocates for the

traditional virtues that are central to America’s

cultural health and welfare, including religious

liberties. CWA actively promotes legislation,

education, and policymaking consistent with its

philosophy. Its members are people whose voices are

often overlooked—everyday, middle-class American

women whose views are not represented by the

powerful elite.

The Illinois Family Institute (IFI) is a nonprofit educational and lobbying organization based in

Tinley Park, Illinois, that exists to advance life, faith,

family, and religious freedom in public policy and

culture from a Christian worldview. A core value of

1 No counsel for any party authored this brief in whole or

in part. No person or entity other than amici and their

counsel made a monetary contribution intended to fund the

preparation or submission of this brief.

2

IFI is to uphold religious freedom and conscience

rights for all individuals and organizations.

Wisconsin Family Action (WFA) is a

Wisconsin not-for-profit organization dedicated to

strengthening, preserving, and promoting marriage,

family, life, and religious freedom. WFA has a unique

and significant statewide presence with its

educational and advocacy work in public policy and

the culture. WFA’s interest in this case stems directly

from its core issues, in particular its long-sustained

efforts to protect and promote religious freedom.

The Delaware Family Policy Council

(DFPC) is a non-partisan, non-profit organization

based in Delaware committed to rebuilding a culture

of life, marriage, family, and religious freedom. DFPC

works to preserve and defend the God-ordained

institution of the family.

Chaplain Alliance for Religious Liberty

(“CALL”) is an organization of chaplain endorsers, the

faith groups that provide chaplains for the U.S.

military, and other agencies. CALL speaks for more

than 2,600 chaplains serving the Armed Forces from

many different denominations. Since 2011, CALL has

led the effort to secure the religious liberties of

chaplains and those whom they serve. CALL enables

all chaplains to serve to the broadest extent of their

constitutional mission and endorsement, and CALL

nurtures and supports an environment that cherishes

the role of chaplains in American culture. CALL exists

to ensure that chaplains can defend and provide for

the freedom of religion and conscience that the

Constitution guarantees all chaplains and those

whom they serve. We join together to pursue a nation

3

where all chaplains, and those whom they serve,

freely exercise their God-given and constitutionally

protected religious liberties without fear of reprisal.

The

International

Conference

of

Evangelical Chaplain Endorsers (ICECE) has as

its main function to endorse chaplains to the military

and other organizations requiring chaplains that do

not have a denominational structure to do so, avoiding

the entanglement with religion that the government

would otherwise have if it determined chaplain

endorsements. ICECE safeguards religious liberty for

all.

SUMMARY OF THE ARGUMENT

The Tenth Circuit was wrong even to have

considered Employment Division v. Smith. 2 This case

falls squarely in the Trinity Lutheran-EspinozaCarson line, 3 as Colorado withheld a generally

applicable government benefit from the Petitioners

due to their religious status and observance. Smith

simply does not apply in such situations.

Your Amici write to stress that the Trinity

Lutheran line of cases, culminating in Carson, has put

to bed the earlier “strict separation” line of cases that

allowed

discrimination

against

“pervasively

sectarian” organizations in the administration of

generally applicable benefits due to their religious

beliefs and practices. Colorado has attempted an end

2 494 U.S. 872 (1990).

3 See Trinity Lutheran Church of Colum., Inc. v. Comer,

582 U.S. 449 (2017); Espinoza v. Mont. Dept. of Rev., 591

U.S. 464 (2020); Carson v. Makin, 596 U.S. 767 (2022).

4

run here by using another label to discriminate

against religious organizations; it simply disqualifies

those with the religious beliefs and practices with

which it disagrees. Such anti-religious discrimination

cannot be excused by the expedient of repackaging. It

is simply an unwelcome attempt to resuscitate the

“pervasively sectarian” and “strict separation”

precedents now abandoned by this Court.

ARGUMENT

I.

Carson and Its Kin Reject Discrimination

Against Free Exercise by “Pervasively

Sectarian” Schools to Advance “Strict

Separation”

This Court over the last few decades has

repudiated the theory that the Establishment Clause

demands “strict separation” between state action and

religious exercise, such that “pervasively sectarian”

schools cannot receive any government funding.

Colorado is trying to get to the same result by another

avenue. This Court should not allow this end run.

A. Mitchell v. Helms Began This Court’s

Retreat from Disqualifying Religious

Institutions

from

Receipt

of

Governmental Benefits Due to Their

Pervasively Sectarian Religious Exercise

Prior to the 1947 decision in Everson that

incorporated the Establishment Clause, this Court

rarely had occasion to consider the constitutionality of

federal funding of religious organizations. But one

5

such occasion was in Bradfield v. Roberts,4 an

Establishment Clause challenge to a federal

appropriation for the construction of a facility for

indigents given to a Roman Catholic hospital that had

been incorporated by an act of Congress. In a

unanimous decision, this Court noted that both the

hospital’s incorporating charter and Congress’s

appropriation served secular purposes and, thus, held

that the Establishment Clause was not offended

because the funds would go to, and be used by, a

hospital owned and managed by a religious

institution:

Whether the individuals who compose the

corporation under its charter happen to be all

Roman Catholics, or all Methodists, or

Presbyterians, or Unitarians, or members of

any other religious organization, or of no

organization at all, is of not the slightest

consequence with reference to the law of its

incorporation, nor can the individual beliefs

upon religious matters of the various

incorporators be inquired into. Nor is it

material that the hospital may be conducted

under the auspices of the Roman Catholic

Church . . . [that] exercises great and perhaps

controlling influence over the management of

the hospital. 5

4 175 U.S. 291 (1899).

5 Id. at 298. This Court went on to explain that issuing

charters of incorporation to corporations managed by

religious bodies does not raise an Establishment Clause

issue, as the charters are available to all on a non-religious

basis. Id.

6

In 1947, this Court in Everson v. Board of

Education, 6 while broadening coverage of the

Establishment Clause to apply it to the States,

approved public funding for transportation of children

to religious schools, including ones that later Courts

would have deemed to be “pervasively sectarian.” It

thereby reinforced that the Establishment Clause

does not prohibit government from granting generally

available public benefits to religious organizations

due to their status. 7 The Everson Court emphasized

that the First Amendment “does not require the state

to be the[ ] adversary” of religious organizations, 8 but

its dicta that “[n]o tax in any amount, large or small,

can be levied to support any religious activities or

institutions, whatever they may be called, or whatever

form they may adopt to teach or practice religion” 9 led

later Courts to the “pervasively sectarian” test. 10

For the next several decades, this Court

intruded into the affairs of sincerely religious schools

to determine their eligibility for public funding. For

example, finding it necessary to examine the

character and purpose of Roman Catholic schools that

benefitted from a public program, Chief Justice

Burger in Lemon v. Kurtzman, 11 examined the

6 330 U.S. 1 (1947).

7 Id. at 16.

8 Id. at 18.

9 Id. at 16.

See, e.g., Sch. Dist. of Grand Rapids v. Ball, 473 U.S.

373,381 (1985) (quoting the Everson passage),

overruled, Agostini v. Felton, 521 U.S. 203 (1997); see also

Roemer v. Bd. of Pub. Works of Md., 426 U.S. 736 (1976);

Meek v. Pittenger, 421 U.S. 349 (1975).

11 403 U.S. 602 (1971).

10

7

proximity between the churches and the religious

schools, the religious symbols in the school buildings,

the time spent daily in direct religious instruction, the

clerical nature of the teachers (two-thirds of the

teachers in the parochial schools were nuns), the

“atmosphere” of the school, and the school’s

governance. 12

These areas of inquiry were changed and

expanded in other cases, 13 but one thing remained

constant—the public schools were never subjected to

the type of examination routinely imposed on religious

schools. There may have been financial audits to

12 Id. at 615-18. In applying the newly formulated Lemon

test, the Court determined that giving aid to the Roman

Catholic schools in Rhode Island with this level of control

would result in “excessive entanglement.” Id. at 619-20.

13 See James A. Davids, Pounding a Final Stake in the

Heart of the Invidiously Discriminatory “Pervasively

Sectarian” Test, 7 Ave Maria L. Rev. 59 (2008), for a

chronology of the “pervasively sectarian” cases. They

include, in addition to Lemon, the following: Hunt v.

McNair, 413 U.S. 734 (1973); Comm. for Pub. Ed. v.

Nyquist, 413 U.S. 756 (1973); Meek v. Pittenger, 421 U.S.

349 (1975); Roemer v. Bd. of Pub. Works, 426 U.S. 736

(1976); Wolman v. Walter, 433 U.S. 229 (1977), overruled,

Mitchell v. Helms, 530 U.S. 793 (2000); Comm. for Pub.

Educ. & Religious Liberty v. Regan, 444 U.S. 646 (1980);

Mueller v. Allen, 463 U.S. 388 (1983); Aguilar v. Felton, 473

U.S. 402 (1985), overruled, Agostini v. Felton, 521 U.S. 203

(1997); Sch. Dist. of Grand Rapids v. Ball, 473 U.S. 373

(1985), overruled, Agostini v. Felton, 521 U.S. 203 (1997);

Witters v. Wash. Dep’t of Servs. for the Blind, 474 U.S. 481

(1986); Bowen v. Kendrick, 487 U.S. 589 (1988); Zobrest v.

Catalina Foothills Sch Dist., 509 U.S. 1 (1993); Agostini v.

Felton, 521 U.S. 203 (1997); Mitchell v. Helms, 530 U.S. 793

(2000); Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

8

ensure that both public and religious schools actually

bought computers as required by the government

grant, but while computers were physically audited to

ensure no religious material was being accessed on the

computers at a sectarian school, as in Mitchell v.

Helms, 14 there is no record that audits were conducted

of public school computers to ensure that students did

not access objectionable porn sites or that lessons

were not being taught from an anti-religious slant.

This Court began to back away from its

“pervasively secular” test in Mitchell. The plurality

opinion (written by Justice Thomas and joined by

Chief Justice Rehnquist and Justices Kennedy and

Scalia) expressly repudiated it, for four distinct

reasons.

First, the plurality observed that “the religious

nature of a recipient should not matter to the

constitutional analysis, so long as the recipient

adequately furthers the government’s secular

purpose.” 15 It noted, “If a program offers permissible

aid to the religious (including the pervasively

sectarian), the areligious, and the irreligious, it is a

mystery which view of religion the government has

established, and thus a mystery what the

constitutional violation would be.” 16

This is eminently logical. If the government

institutes a grant program to stimulate literacy for

which both public and private schools compete but it

then disqualifies a yeshiva because it is “pervasively

sectarian,” it manifests “special hostility for those who

14 See

530 U.S. at 862-63 (O’Connor, J., concurring).

15 Id. at 827.

16 Id.; see Bradfield, 175 U.S. at 298.

9

take their religion seriously, who think that their

religion should affect the whole of their lives, or who

make the mistake of being effective in transmitting

their views to children.” 17 Although the plurality did

not express this concept as embedded in the Free

Exercise Clause, 18 that is where it resides: seriously

religious schools were suffering discriminatory

treatment precisely because of their exercise of their

religion.

Second, the Mitchell plurality noted that the

inquiry into the practice of religious schools deemed

pervasively sectarian “was not only unnecessary but

also offensive.” 19 Implicitly invoking the church

autonomy doctrine, they deemed “well established”

the principle that “courts should refrain from trolling

through a person’s or institution’s religious beliefs,”

an analysis required under the pervasively sectarian

test and “profoundly troubling.” 20 Combining its first

two points, the plurality wrote that the use of the

pervasively sectarian test collided with “our decisions

that

have

prohibited

governments

from

discriminating in the distribution of public benefits

based upon religious status or sincerity.” 21

17 530 U.S. at 827-28.

18 But see id. at 868 (Souter, J., dissenting) (recognizing the

free exercise dimension).

19 Id. at 828.

20 Id.

21 Id. at 828 (citing Rosenberger v. Rector and Visitors of

Univ. of Va., 515 U.S. 819 (1995); Lamb’s Chapel v. Ctr.

Moriches Union Free Sch. Dist., 508 U.S. 384 (1993);

Widmar v. Vincent, 454 U.S. 263 (1981)). Of course, Trinity

Lutheran and Espinoza fully support the “status” prong of

the plurality’s statement. See Trinity Lutheran, 582 U.S. at

458-67; Espinoza, 591 U.S. at 473-80.

10

Third, the Mitchell plurality discussed briefly

the deplorable history that undergirds the pervasively

sectarian test. 22 It noted, for instance, the antiCatholic bias that led to the near passage of the

federal Blaine Amendment, which would have

deprived public aid to sectarian (“code” for Catholic)

schools. 23 The plurality concluded, “In short, nothing

in the Establishment Clause requires the exclusion of

pervasively sectarian schools from otherwise

permissible aid programs, and other doctrines of this

Court bar it. This doctrine, born of bigotry, should be

buried now.” 24

Fourth, the Mitchell plurality responded to the

worry of Justice Souter in dissent that the

government aid could be diverted by the religious

schools to impermissible (i.e., pervasively sectarian)

uses. 25 The plurality stated, “So long as the

governmental aid is not itself ‘unsuitable for use in the

public schools because of religious content’ and

eligibility for aid is determined in a constitutionally

permissible manner, any use of that aid to

indoctrinate cannot be attributed to the government

22 530 U.S. at 828-29.

23 Id. The plurality pointed out that Justice Souter almost

exclusively referred to Catholic schools in the portion of his

Mitchell dissent devoted to the pervasively sectarian test,

exemplifying the Court’s almost exclusive application of

the test to Catholic schools. Id. at 829. Justice Alito

provided a more detailed discussion on the anti-Catholic

bias of the Blaine Amendment and its state-level

counterparts in his concurrence in Espinoza. 591 U.S. at

497-508 (Alito, J., concurring).

24 530 U.S. at 829.

25 Id. at 890-95 (Souter, J. dissenting).

11

and is thus not of constitutional concern.” 26 It labeled

as “unworkable” a rule that disallowed aid because it

was “divertible” to religious purposes. 27

B. The “Pervasively Sectarian” Test Was

Further Eroded by Decisions Explaining

That Private Choices Determining the

Recipient of Generally Available Public

Funds Eliminate the Applicability of the

Establishment Clause

Another series of this Court’s decisions also

eroded the (supposed) Establishment Clause

underpinnings of the pervasively sectarian test. Those

cases assume generally available government aid, if

distributed to religious institutions, may well be used

for religious purposes without implicating the

Establishment Clause because private parties, by

their independent choices, directed the aid to the

institution. These personal, independent choices

break the causal chain between the State and the

religious school.

This Court explained this case law in some

detail in Zelman v. Simmons-Harris. 28 Zelman

26 Id. at 818-20 (citing Bd. of Educ. of Cent. Sch. Dist. No.

1 v. Allen, 392 U. S. 236, 245 (1968)). The aid in Mitchell

was money for computers, computer software, and library

books. Id. at 802. The government program providing this

aid required that the items be secular, id., and there was

no challenge to that in Mitchell.

27 Id. at 820.

28 536 U.S. 639 (2002). This Court in Agostini also

recognized that cases in this series undercut the

“pervasively sectarian” test. 521 U.S. at 225-32.

12

concerned a multifaceted plan by the Cleveland school

system that included providing scholarship assistance

to allow parents to send their children to private

schools. That part of the plan was attacked because

many of the schools selected by parents to receive

public aid were “pervasively sectarian.”

This Court rebuffed the Establishment Clause

challenge to the plan. By reviewing in particular three

precedents that are also directly relevant here, this

Court emphasized that, when it comes to the Federal

Constitution, there is a critical difference between

government particularly directing expenditures to

religious institutions for religious purposes and

systems in which private choice determines where

generally available funds are spent:

[O]ur decisions have drawn a consistent

distinction between government programs that

provide aid directly to religious schools,

Mitchell v. Helms, 530 U.S. 793, 810-814 (2000)

(plurality opinion); id., at 841-844 (O’Connor,

J., concurring in judgment); Agostini [v. Felton,

521 U.S. 203 (1997)], supra, at 225-227;

Rosenberger v. Rector and Visitors of Univ. of

Va., 515 U.S. 819, 842 (1995) (collecting cases),

and programs of true private choice, in which

government aid reaches religious schools only

as a result of the genuine and independent

choices of private individuals, Mueller v. Allen,

463 U.S. 388 (1983); Witters v. Wash. Dept. of

Servs. for Blind, 474 U.S. 481 (1986); Zobrest v.

Catalina Foothills Sch. Dist., 509 U.S. 1 (1993).

. . . Three times we have confronted

Establishment Clause challenges to neutral

government programs that provide aid directly

13

to a broad class of individuals, who, in turn,

direct the aid to religious schools or institutions

of their own choosing. Three times we have

rejected such challenges. 29

The Court went on to explain that, in

Mueller, we rejected an Establishment Clause

challenge to a Minnesota program authorizing

tax deductions for various educational

expenses, including private school tuition costs,

even though the great majority of the program’s

beneficiaries (96%) were parents of children in

religious schools. [V]iewing the program as a

whole, we emphasized the principle of private

choice, noting that public funds were made

available to religious schools “only as a result of

numerous, private choices of individual parents

of school-age children.” 463 U.S., at 399-400.

This, we said, ensured that “no ‘imprimatur of

state approval’ can be deemed to have been

conferred on any particular religion, or on

religion generally.” Id., at 399 (quoting Widmar

[v. Vincent, 454 U.S. 263 (1981)], supra, at

274). We thus found it irrelevant to the

constitutional inquiry that the vast majority of

beneficiaries were parents of children in

religious schools. 463 U.S., at 401. That the

program was one of true private choice, with no

evidence that the State deliberately skewed

incentives toward religious schools, was

29 536 U.S. at 649; cf. Corp. of Presiding Bishop v. Amos,

483 U.S. 327, 337 (1987) (“A law is not unconstitutional

simply because it allows churches to advance religion,

which is their very purpose.”).

14

sufficient for the program to survive scrutiny

under the Establishment Clause. 30

The Zelman Court next discussed its prior

decision in Witters, in which this Court

used identical reasoning to reject an

Establishment Clause challenge to a vocational

scholarship program that provided tuition aid

to a student studying at a religious institution

to become a pastor. Looking at the program as

a whole, we observed that “[a]ny aid . . . that

ultimately flows to religious institutions does so

only as a result of the genuinely independent

and private choices of aid recipients.” 474 U.S.,

at 487. We further remarked that, as in

Mueller, “[the] program is made available

generally without regard to the sectariannonsectarian, or public-nonpublic nature of the

institution benefited.” 474 U.S., at 487 (internal

quotation marks omitted). In light of these

factors, we held that the program was not

inconsistent with the Establishment Clause.

Id., at 488-489.

Five Members of the Court, in separate

opinions, emphasized the general rule from

Mueller that the amount of government aid

channeled to religious institutions by

individual aid recipients was not relevant to the

constitutional inquiry. 474 U.S., at 490-491

(Powell, J., joined by Burger, C.J., and

Rehnquist, J., concurring) (citing Mueller,

supra, at 398-399); 474 U.S., at 493 (O’Connor,

30 536 U.S. at 649-50.

15

J., concurring in part and concurring in

judgment); id., at 490 (White, J., concurring).

Our holding thus rested not on whether few or

many recipients chose to expend government

aid at a religious school but, rather, on whether

recipients generally were empowered to direct

the aid to schools or institutions of their own

choosing. 31

Third, the Zelman Court explicated its ruling in

Zobrest, in which it rejected an Establishment Clause

challenge to a federal program that permitted signlanguage interpreters to assist deaf children enrolled

in religious schools:

We further observed that “[b]y according

parents freedom to select a school of their choice,

the statute ensures that a government-paid

interpreter will be present in a sectarian school

only as a result of the private decision of

individual parents.” [509 U.S.] at 10. Our focus

again was on neutrality and the principle of

private choice, not on the number of program

beneficiaries attending religious schools. Id., at

10-11. . . . Because the program ensured that

parents were the ones to select a religious school

as the best learning environment for their

handicapped child, the circuit between

government and religion was broken, and the

Establishment Clause was not implicated. 32

The Zelman Court summed up the holdings of

those cases as follows:

31 Id. at 650-51.

32 Id. at 651-52.

16

Mueller, Witters, and Zobrest thus make clear

that where a government aid program is

neutral with respect to religion, and provides

assistance directly to a broad class of citizens

who, in turn, direct government aid to religious

schools wholly as a result of their own genuine

and independent private choice, the program is

not readily subject to challenge under the

Establishment Clause. A program that shares

these features permits government aid to reach

religious institutions only by way of the

deliberate choices of numerous individual

recipients. The incidental advancement of a

religious mission, or the perceived endorsement

of a religious message, is reasonably

attributable to the individual recipient, not to

the government, whose role ends with the

disbursement of benefits. 33

In short, no Establishment Clause claim lies

when “pervasively secular” schools receive generally

available public aid through the selection of parents of

the schools attended by their children.

C. Trinity

Lutheran

and

Espinoza

Further Eroded the Pervasively

Sectarian Test

Two decades later, in Trinity Lutheran, this

Court firmly rejected Justice Souter’s reasoning in his

Mitchell dissent. Instead of the Establishment Clause

forbidding

an

evenhanded

application

of

governmental benefits to a pervasively sectarian

school, this Court held that the Free Exercise Clause

33 Id. at 652.

17

prohibits the government from discriminating against

church schools solely because of their religious

status. 34

Similarly, in Espinoza this Court found that

denying religious schools participation in a generally

applicable, public scholarship program because of

their religious status violated the Free Exercise

Clause. 35 Montana asserted that it was not

discriminating against the religious schools because of

their status as religious institutions, but because of

their use of public funds for religious education (i.e.,

because they were “pervasively sectarian”). 36 The

state claimed that the “no-aid provision has the goal

or effect of ensuring that government aid does not end

up being used for ‘sectarian education’ or ‘religious

education,’” noting that it could be used for religious

ends by “schools that believe faith should ‘permeate[ ]’

everything they do.” 37 Rejecting this argument, the

Espinoza Court noted that the Montana Supreme

Court had repeatedly held that the State’s Blaine

Amendment barred aid based on status and that this

required a school to remove itself from any religious

control to become eligible for the scholarship

program. 38 Placing a condition on benefits deters the

exercise of First Amendment rights and subjects the

status-based discrimination to “the strictest

scrutiny.” 39

34 582 U.S. at 458-67.

35 591 U.S. at 477.

36 Id. at 476-79.

37 Id. at 477 (emphasis in original).

38 Id.

39 Id. at 478 (quoting Trinity Lutheran, 582 U.S. at 462-63).

18

D. Carson Completed the Rejection of the

Pervasively Sectarian Test in the

Context of a Religious School’s Receipt

of Generally Available Benefits

This Court in Espinoza and Trinity Lutheran

reserved the “use vs. status” issue. 40 It resolved that

issue in Carson, 41 at the same time effectively

interring the pervasively sectarian test.

The Maine statute required private schools, to

qualify for scholarship money, even though received

through parental choice, to be “nonsectarian in

accordance with the First Amendment,” 42 an obvious

attempt to adopt this Court’s “pervasively sectarian”

case law. Maine tied eligibility directly to how a

sectarian school practiced its faith and belief system.

A religious school remained eligible, despite its

sectarian status, only if it did not teach religion in a

proselytizing manner or other subjects through the

“lens of faith.” 43

Maine’s approach foundered on the Free

Exercise Clause: “The Free Exercise Clause of the

First Amendment protects against ‘indirect coercion

or penalties on the free exercise of religion, not just

outright prohibitions.’” 44 This Court confirmed that

disqualifying an organization from an otherwise

generally applicable government benefit because of its

40 See id. at 478-79; Trinity Lutheran, 582 U.S. at 465 n.3.

41 596 U.S. 767 (2022).

42 Me. Stat., tit. 20-A, § 2951(2).

43 596 U.S. at 775.

Id. at 778 (quoting Lyng v. Nw. Indian Cemetery

Protective Assn., 485 U.S. 439, 450 (1988)).

44

19

exercise of its religion violates the Free Exercise

Clause. Besides the textual overlap, it is hard to see

how any other conclusion could have been drawn. The

way an organization practices its religion is just

another way of stating that it is religious, i.e., has a

religious status.

Indeed, this Court in Carson found the “status”

cases of Trinity Lutheran and Espinoza to be

dispositive. A wide range of schools was eligible to

receive tuition benefits, including some religious

schools that were not “pervasively sectarian,” but the

statute still fell because Maine conditioned the

disqualification on the religious character of the

excluded schools, i.e., “solely because they are

religious,” 45 and, in particular, how they practiced

their religion. It did not matter that some churches no

longer adhered to a traditional view of sex and so were

not pervasively sectarian and did qualify for the tuition

grant.

To the extent that anything but smoke was left

of the “pervasively sectarian” precedents, this Court

blew it away in Kennedy v. Bremerton School District. 46

The dissenters in Carson continued to make recourse

to that precedent, and, in particular, its foundational

assumption that the Establishment Clause somehow

trenches on the protections of the Free Exercise Clause,

giving States the ability to restrict free exercise

because of the “play in the joints” between the clauses,

putting one in tension with the other. The Carson

dissenters reference that “play” no less than nine times

45 Id. at 780 (quoting Espinoza, 591 U.S. at 486).

46 597 U.S. 507 (2022).

20

in their two opinions. 47

In Kennedy, the school board justified its

disciplining of a public school football coach who

prayed by himself on school property and in public

view on the Establishment Clause, which, the school

board urged, allowed the school district to restrict

Coach Kennedy’s free exercise of religion. This Court

firmly rejected that contention and its implication

that the Religion Clauses are in tension. After labeling

the Lemon test as abandoned and inconsistent with a

historical understanding of the clauses, 48 this Court

reached a conclusion just as applicable here as there:

“In truth, there is no conflict between the

constitutional commands before us. There is only the

‘mere shadow’ of a conflict, a false choice premised on

a misconstruction of the Establishment Clause.” 49 It

continued, “[T]he only meaningful justification the

government offered for its reprisal rested on a

mistaken view that it had a duty to ferret out and

suppress religious observances even as it allows

comparable secular speech. The Constitution neither

mandates nor tolerates that kind of discrimination.” 50

Carson and Kennedy properly put to bed the

“pervasively sectarian” case law and its “play in the

joints” theory that the Establishment Clause

somehow justifies restrictions on free exercise. The

Establishment Clause is no more anti-religion than

47 596 U.S. at 789-806 (Breyer, J., dissenting) (seven times);

id. at 806-10 (Sotomayor, J., dissenting) (two times).

48 597 U.S. at 534.

49 Id. at 543 (quoting Sch. Dist. of Abington Twp. v.

Schempp, 374 U.S. 203, 308 (Goldberg, J., concurring).

50 Id. at 543-44.

21

the Free Speech Clause is anti-speech or the Free

Press Clause is anti-press. To the contrary, the

Religion Clauses are both pro-religion. These

freedoms have practical limits for the common good

and welfare, but they cannot properly be restrained

simply because someone talks or prints “too much” on

a particular topic. Nor does the First Amendment

allow religious practice to be penalized because it is

“too sincere” or “too pervasive.”

II.

The Trinity Lutheran Line of Cases

Cannot Be Avoided by the State

Repackaging Anti-religious Discrimination as Protecting Against Discrimination of Another Type

Is it as easy to circumvent the Trinity

Lutheran-Espinoza-Carson rule that a generally

available public benefit cannot be denied due to

religious exercise simply by rewording the law to

avoid an openly religious word or phrase? Maine

thinks so.

After this Court in Carson struck down Maine’s

law excepting schools that were “too religious” from

receiving funds otherwise available, Maine simply

forbade such funds going to schools that

“discriminate” by word or deed against homosexuality

or transgenderism. 51 Of course, it is known to all that

the schools that do that are the “too religious” schools,

those who hold to the exercise of their traditional

51 See Crosspoint Church v. Makin, 719 F. Supp. 3d 99, 119-

23 (D. Me. 2024), appeal argued, No. 24-1590 (1st Cir., Jan.

7, 2025).

22

beliefs. 52 The obvious upshot of this is that religious

schools that enforce and inculcate traditional sexual

mores fall under the Maine law’s new exclusion and

are disqualified from receiving the benefit because of

their religious beliefs and practices that discriminate

against sexual orientation and transgenderism.

Colorado has tried the same tactic. It was

thwarted in Masterpiece Cakeshop, Ltd. v. Colorado

Civil Rights Division 53 when its legislators were too

open about their anti-religious bias. So, this time, they

kept quiet about it. Colorado freely funds

kindergartens that restrict students to those who are

homosexual and transgender (because they are

identifiable groups that Colorado finds have suffered

discrimination), but it refuses to fund schools

restricted by their religion from accepting such

conduct

as

normative

(even

though

such

discrimination against them is because the schools are

exercising their religious beliefs).

The Tenth Circuit bought it. It held that all the

legislature had to do was to avoid mentioning

religious organizations or practices explicitly (even

though everyone knows whom it disqualifies). The

Tenth Circuit reasoned that the Trinity LutheranEspinoza-Carson line of cases only covers “laws that

targeted ‘religious status’ and ‘religious use’ on the

See Bates v. Pakseresht, 146 F.4th 772, 794 (9th Cir.

2025) (finding that such nondiscrimination labels target

most specifically those with traditional religious views).

53 584 U.S. 617 (2018).

52

23

explicit basis that they were religious and not

secular.” 54

This is too clever by half. As this Court recently

reinforced, courts must apply “commonsense

inferences” about how state action will “impose on

protected First Amendment rights.” 55 Justice

Blacklock of the Texas Supreme Court aptly noted

that “the core of the matter” between what he termed

the “Transgender Vision” and the “Traditional Vision”

is a moral and religious dispute. 56 Similarly, the

Ninth Circuit recently observed that provisions

prohibiting

discrimination

based

on

sexual

orientation and gender identity fall almost exclusively

on those who hold traditional religious views of

sexuality. 57

If this repapering exercise by Maine and

Colorado works, then it is hard to understand what is

left of the Trinity Lutheran-Espinoza-Carson line of

cases. All a State has to say is, “Thou shalt not

discriminate on the basis of gender and sexual

orientation.” Then a religious organization needs to

decide whether (a) to stay true to its traditional

religious beliefs and forego the public benefit or (b) to

ditch its beliefs and take the money.

St. Mary Cath. Parish v. Roy, 154 F.4th 752, 764

(emphasis added).

55 First Choice Women’s Res. Ctrs., Inc. v. Davenport, 146 S.

Ct.1114, 1125 (2026).

56 State v. Loe, 692 S.W.3d 215, 239-40 (Tex. 2024)

(Blacklock, J., concurring).

57 Bates, 146 F.4th at 794.

54

24

At the end of the day, this “anti-discrimination”

maneuver by Colorado is an attempt to roll back the

clock and reimpose the “strict separation” and

“pervasively sectarian” case law that this Court has

effectively repudiated over the last several decades.

Carson was the culmination of that roll-back. This

Court should not retreat now. It should not turn a

blind eye to Colorado’s transparent attempt to make

it more expensive for parents to choose a traditionally

religious school for their child than one that aligns

with the State’s embrace of more modern ideology

about gender and sexual relations. When a State law

targets traditional religious beliefs and exercise by

outlawing or otherwise burdening them, that is a free

exercise violation requiring justification by strict

scrutiny, even when the law does not explicitly

mention religion but only beliefs the religious hold.

Carson reaffirms that indirect, as well as direct,

coercion runs afoul of the Free Exercise Clause. 58

CONCLUSION

Colorado has not found an acceptable way

around the Trinity Lutheran-Espinoza-Carson line of

cases which prohibits discrimination against religion

in the administration of generally applicable benefits.

It does not suffice to take a traditional religious belief

and practice and outlaw it as prohibited

“discrimination” by another name. The law deals with

the substance of the matter, not the terminology. 59

58 596 U.S. at 778.

59 Students for Fair Admission, Inc. v. Pres. and Fellows of

Harvard Coll., 600 U.S. 181, 230 (2023) (the law is “levelled

at the thing, not the name”).

25

This Court should reverse the Tenth Circuit.

Respectfully submitted,

this 26th day of June, 2026,

/s/ Frederick W. Claybrook, Jr.

Frederick W. Claybrook, Jr.

(Counsel of Record)

Claybrook LLC

655 15th St., N.W., Ste. 425

Washington, D.C. 20005

(301) 622-0360

Steven W. Fitschen

James A. Davids

National Legal Foundation

524 Johnstown Road

Chesapeake, Va. 23322

(757) 650-9210

sfitschen@nationallegalfoundation.org

Counsel for Amici Curiae