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.

Supreme Court briefJul 2, 2026

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Text

No. 25-581

IN THE

Supreme Court of the United States

————

ST. MARY CATHOLIC PARISH IN LITTLETON, et al.,

Petitioners,

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 OF NATIONAL ASSOCIATION OF

EVANGELICALS; THE CHURCH OF JESUS

CHRIST OF LATTER-DAY SAINTS; THE

ETHICS AND RELIGIOUS LIBERTY

COMMISSION OF THE SOUTHERN BAPTIST

CONVENTION; THE LUTHERAN CHURCHMISSOURI SYNOD; THE COALITION FOR

JEWISH VALUES; THE JURISDICTION OF

THE ARMED FORCES AND CHAPLAINCY OF

THE ANGLICAN REFORMED CATHOLIC

CHURCH; AND NATIONAL APOSTOLIC

CHRISTIAN LEADERSHIP CONFERENCE AS

AMICI CURIAE SUPPORTING PETITIONERS

————

R. SHAWN GUNNARSON

Counsel of Record

CHRISTOPHER A. BATES

ALAN M. HURST

JAROM M. HARRISON

KRISTEN CLARKE

KIRTON | MCCONKIE

36 South State Street

Suite 1900

Salt Lake City, Utah 84111

(801) 328-3600

sgunnarson@kmclaw.com

Counsel for Amici Curiae

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

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

iii

INTERESTS OF AMICI CURIAE ......................

SUMMARY OF ARGUMENT .............................

ARGUMENT ........................................................

II.

THE FIRST AMENDMENT CATEGORICALLY

PROHIBITS RELIGIOUS DISCRIMINATION.....

A. The First Amendment Was Originally

Understood as a Prohibition Against

Religious Discrimination ......................

B. Experience with Civil Disabilities

Under English and Colonial Law Led

Americans to Reject Religious

Discrimination .....................................

C. This Court’s Decisions Affirm That

the

Religion

Clauses

Prohibit

Religious Discrimination .....................

D. Excluding Petitioners from Colorado’s

Program Because of Their Religion Is

Religious Discrimination .....................

THE FIRST AMENDMENT’S CATEGORICAL

RULE AGAINST RELIGIOUS DISCRIMINATION APPLIES WITHOUT PROOF OF

HOSTILITY ..................................................

A. Discrimination

Means

Unequal

Treatment—Not

Merely

Hostile

Treatment ............................................

(i)

TABLE OF CONTENTS—Continued

Page

B. This Court Should Affirm the

Categorical Rule Against Religious

Discrimination to Correct Lower

Courts...................................................

III. RELIGIOUS

DISCRIMINATION

HARMS

RELIGIOUS PEOPLE AND INSTITUTIONS ......

A. Religious Education Reflects the

Exercise of First Amendment Rights .

B. Denying

Public

Funding

for

Education Because of a School’s

Religion Harms the School and the

Families It Serves................................

CONCLUSION ....................................................

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Agency for Int’l Dev. v. All. for Open Soc’y

Int’l, Inc.,

570 U.S. 205 (2001) ...................................

Allegheny Pittsburgh Coal Co. v. Cnty.

Comm’r of Webster Cnty.,

488 U.S. 336 (1989) ...................................

Bowen v. Roy,

476 U.S. 693 (1986) ................................... 16, 21

Bus. Leaders in Christ v. Univ. of Iowa,

991 F.3d 969 (8th Cir. 2021) ..................... 29, 30

Carson v. Makin,

596 U.S. 767 (2022) ............. 1, 13, 18, 20–23, 28

Cath. Charities Bureau, Inc. v. Wis. Lab. &

Indus. Rev. Comm’n,

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

Church of the Lukumi Babalu Aye, Inc. v.

City of Hialeah,

508 U.S. 520 (1993) ....................... 12, 14, 16, 21

Crosspoint Church v. Makin,

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

Emp. Division v. Smith,

494 U.S. 872 (1990) ................................. 1, 2, 21

Engel v. Vitale,

370 U.S. 421 (1962) ...................................

Espinoza v. Montana Dep’t of Revenue,

591 U.S. 464 (2020) ....................... 13, 18, 24, 28

Everson v. Bd. of Educ.,

330 U.S. 1 (1947) .......................................

TABLE OF AUTHORITIES—Continued

Page(s)

Fowler v. R.I.,

345 U.S. 67 (1953) ..................................... 14, 18

Fulton v. Philadelphia,

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

Gonzales v. O Centro Espirita Beneficente

Uniao do Vegetal,

546 U.S. 418 (2006) ...................................

Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC,

565 U.S. 171 (2012) ................................... 15, 16

InterVarsity Christian Fellowship/USA v.

Univ. of Iowa,

5 F.4th 855 (8th Cir. 2021) .......................

Kennedy v. Bremerton,

597 U.S. 507 (2022) ...................................

Larson v. Valente,

456 U.S. 228 (1982) ...................................

Locke v. Davey,

540 U.S. 712 (2004) ...................................

Loffman v. Cal. Dep’t of Educ.,

119 F.4th 1147 (9th Cir. 2024) .................

Mahmoud v. Taylor,

606 U.S. 522 (2025) ............................... 1, 24–27

Masterpiece Cakeshop v. Col. Civ. Rights

Comm’n

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

McDaniel v. Paty,

435 U.S. 618 (1978) ................................... 14, 18

TABLE OF AUTHORITIES—Continued

Page(s)

Meyer v. Neb.,

262 U.S. 390 (1923) ...................................

Mirabelli v. Bonta,

607 U.S. 492 (2026) ...................................

Miss. Univ. for Women v. Hogan,

458 U.S. 718 (1982) ...................................

Niemotko v. Md.,

340 U.S. 268 (1951) ...................................

Nollan v. Cal. Coastal Comm’n,

483 U.S. 825 (1987) ...................................

Our Lady of Guadalupe Sch. v.

Morrissey-Berru,

591 U.S. 732 (2020) ................................... 24–25

People ex rel. Wallace v. Labrenz,

104 N.E.2d 769 (Ill. 1952) .........................

Pierce v. Soc’y of the Sisters of the

Holy Names of Jesus & Mary,

268 U.S. 510 (1925) ...................................

Reed v. Reed,

404 U.S. 71 (1971) ..................................... 19–20

Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290 (2000) ......................................... 3, 14

St. Dominic Academy v. Makin,

744 F. Supp. 3d 43 (D. Me. 2024) ............. 22, 23

State ex rel. Swann v. Pack,

527 S.W.2d 99 (Tenn. 1975)......................

Tandon v. Newsom,

593 U.S. 61 (2021) .....................................

TABLE OF AUTHORITIES—Continued

Page(s)

Torcaso v. Watkins,

367 U.S. 488 (1961) ...................................

Trinity Lutheran Church of Columbia, Inc.

v. Comer,

582 U.S. 449 (2017) ................. 12, 13, 18, 20, 29

Troxel v. Granville,

530 U.S. 57 (2000) .....................................

United States v. Va.,

518 U.S. 515 (1996) ...................................

Wis. v. Yoder,

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

Woolard v. Thurmond,

170 F.4th 701 (9th Cir. 2026) ...................

CONSTITUTION

U.S. Const.

amend. I ...........1–4, 7–18, 21–24, 26, 27, 30, 31

U.S. Const. amend. XIV ..................... 8, 18, 20, 24

STATUTES AND REGULATIONS

1 Stat. 97 (1789) ...........................................

5 Me. Rev. Stat. § 4602(5)(D) .......................

Mont. Admin. R. § 42.4.802(1)(a) (2015)......

COURT FILINGS

Appendix to Petition for Writ of Certiorari,

Espinoza v. Mont. Dep’t of Revenue, 591

U.S. 464 (No. 18-1195) (Mar. 12, 2019) .... 28–29

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Brief for Amici Curiae Church of God in

Christ, Inc. and Union of Orthodox

Jewish Congregations of America in

Support of Petitioners, Our Lady of

Guadalupe Sch. v. Morrissey-Berru, 591

U.S. 732 (No. 19-267) (Sept. 27, 2019) .....

Petition for Writ of Certiorari, Carson v.

Makin, 596 U.S. 767 (No. 20-1088) (Feb.

4, 2021) ......................................................

Petition for Writ of Certiorari, Trinity

Lutheran Church of Columbia, Inc. v.

Comer, 582 U.S. 449 (No. 15-577) (Nov. 4,

2015) ..........................................................

OTHER AUTHORITIES

Alexander Hamilton: Writings (Joanne B.

Freeman ed., 2001) ...................................

8, 9

Annals of Cong. (Joseph Gales ed., 1834) ....

6, 7

Carl H. Esbeck, Uses and Abuses of

Textualism and Originalism in Establishment Clause Interpretation, 2011

Utah L. Rev. 489 (2011) ............................

Catechism of the Catholic Church (2d ed.

2019) ..........................................................

The Complete Bill of Rights (Neil H. Cogan

ed., 2d ed. 2015) ........................................

5–7

David P. Currie, The Constitution in the

Supreme Court: The First Hundred

Years, 1789–1888 (1985) ...........................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

English Historical Documents 1660–1714

(Andrew Browning ed., 1953) ...................

H. Brackenridge et al., Speeches in the

House of Delegates of Maryland (1829) ....

Joseph Story, Commentaries on the Constitution of the United States (Carolina

Acad. Press 1987) (1833) ..........................

8, 9

Kurt T. Lash, The Second Adoption of the

Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment,

88 Nw. U. L. Rev. 1106 (1994) ..................

Lawrence Henry Gipson, The Coming of the

Revolution, 1763–1775 (1954) ..................

Leonard W. Levy, Origins of the Bill of

Rights (1999) .............................................

Michael W. McConnell, Establishment and

Disestablishment at the Founding, Part I:

Establishment of Religion, 44 Wm. &

Mary L. Rev. 2105 (2003) .........................

Michael W. McConnell, Establishment and

Toleration in Edmund Burke’s “Constitution of Freedom,” 1995 Sup. Ct. Rev. 393

(1995) .........................................................

Noah Webster, An American Dictionary of

the English Language (1828) ....................

Pauline Maier, Ratification: The People

Debate the Constitution, 1787–1788

(2010) .........................................................

TABLE OF AUTHORITIES—Continued

Page(s)

S. Journal, 1st Cong., 1st Sess. 77 (1820)....

Samuel Eliot Morison, Builders of the Bay

Colony (1930) ............................................

Stuart Leibiger, James Madison and

Amendments to the Constitution, 1787–

1789: “Parchment Barriers,” 59 J. S. Hist.

441 (1993) ..................................................

Thomas M. Cooley, A Treatise on the

Constitutional Limitations Which Rest

Upon the Legislative Power of the States

of the American Union (2d ed. 1871) ........ 9, 12

William Blackstone, Commentaries on the

Laws of England (1769) ............................

William Lee Miller, The Business of May

Next: James Madison & the Founding

(1992) .........................................................

William Rawle, A View of the Constitution of

the United States of America (1825) ...........

8, 9

INTERESTS OF AMICI CURIAE1

Amici represent diverse faiths—Latter-day Saint,

Evangelical, Baptist, Lutheran, Anglican, Apostolic

Pentecostal Christian, and Jewish—who share a

profound commitment to preserving religious freedom

under the Constitution. Each of our faith communities

has suffered unequal treatment by government officials

who have disregarded the Constitution’s guarantee of

religious equality. That experience teaches us that

freedom from religious discrimination ought to be the

irreducible minimum secured by the First Amendment.

We submit this brief to defend that principle, just as

some amici previously did in the cases culminating in

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

SUMMARY OF ARGUMENT

Review has been granted to decide “[w]hether

Carson v. Makin displaces the rule of Employment

Division v. Smith only when the government explicitly

excludes religious people and institutions.” Pet.ii. We

join petitioners in rejecting that misreading of the

Free Exercise Clause. The Constitution “protects against

policies that impose more subtle forms of interference”

with religious practice. Mahmoud v. Taylor, 606 U.S.

522, 548 (2025). Colorado does not have to exclude

Catholics by name to exclude them in fact.

We write to approach the question from a different

perspective. Colorado’s denial of funding to petitioners

because of their religious beliefs and practices is not

subject to Smith’s neutral-and-generally-applicable1

Pursuant to Supreme Court Rule 37.6, amici state that no

counsel for any party authored this brief in whole or in part and

that no entity or person, aside from amici, their members, and

their counsel, made any monetary contribution toward the

preparation or submission of this brief.

law standard. See Emp. Div. v. Smith, 494 U.S. 872, 877

(1990) (Under the Free Exercise Clause, “[t]he government may not * * * impose special disabilities on

the basis of religious views or religious status.”). By

conditioning eligibility for public benefits on a

nondiscrimination rule that contradicts petitioners’

religion, Colorado has discriminated because of

religion. Religious discrimination is governed by the

First Amendment’s categorical rule against religious

discrimination—not by Smith. Constitutional text,

original understanding, historical background, and

judicial precedent confirm that religious discrimination offends the Religion Clauses. This Court has never

approved government-sponsored religious discrimination. Embracing a categorical rule against religious

discrimination here would reflect this Court’s established practice.

Colorado engaged in religious discrimination when

it denied petitioners a grant for preschool education

only because their Catholic convictions preclude them

from accepting the State’s LGBT policy. That denial

treats petitioners unequally because of their faith.

Colorado has thus engaged in religious discrimination

formally indistinguishable from civil disabilities the

Founding generation expressly rejected as odious.

The Tenth Circuit was mistaken to hold that a claim

of religious discrimination demands proof of animus or

hostility. Religious discrimination is wrong in itself.

Excluding a person or institution from a widely

available government program because of religious

beliefs and practices denies them their share of

American citizenship and defies the Constitution’s

guarantee of religious freedom.

Religious discrimination is not only a matter of

constitutional principle. Religious parents educate

their children at religious schools out of a sense of

religious duty. Discriminating against religious

schools because of their faith inflicts serious practical

harms on religious people and institutions alike. When

religious schools carry out religious standards in

admissions and employment, they sometimes collide

with State officials who apply pressure to conform

with State policy. Schools that do not bend sometimes

break. Here, the record shows that Colorado’s denial of

preschool funding to petitioners led more than one

school to close its doors. Unequal treatment destroyed

educational institutions, to the detriment of the

religious children and families they served. Petitioners’

experience is not isolated. Other decisions catalog the

tangible harms that follow religious discrimination.

Colorado’s denial of funding to petitioners violates

the First Amendment and cannot stand. The Tenth

Circuit’s contrary decision should be reversed.

ARGUMENT

I. THE FIRST AMENDMENT CATEGORICALLY

PROHIBITS RELIGIOUS DISCRIMINATION.

A. The First Amendment Was Originally

Understood as a Prohibition Against

Religious Discrimination.

1. The First Amendment declares that “Congress

shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof.” U.S.

Const. amend. I. Those words convey a “common

purpose”—“to secure religious liberty.” Santa Fe Indep.

Sch. Dist. v. Doe, 530 U.S. 290, 313 (2000) (internal

quotation marks omitted) (quoting Engel v. Vitale, 370

U.S. 421, 430 (1962)). For too long, it was believed that

the Religion Clauses were “frequently in tension.”

Locke v. Davey, 540 U.S. 712, 718 (2004). That

outmoded approach has given way to a more “natural

reading” that “the Clauses have ‘complementary’

purposes, not warring ones.” Kennedy v. Bremerton

Sch. Dist., 597 U.S. 507, 510 (2022). The Religion

Clauses work in tandem—not in tension.

Both Clauses forbid religious discrimination. A law

“respecting an establishment of religion” extends beyond

the creation of a state church to cover laws historically

associated with suppressing religious denominations

or beliefs other than the government’s favored

ones. See Michael W. McConnell, Establishment and

Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2110–

30 (2003). Among such laws are civil disabilities, laws

denying civil rights because of religious belief, practice, or affiliation. (More on civil disabilities below.)

And since the “exercise” of religion must be “free”—

that is, unconstrained—laws that attach special

burdens or penalties because of religious belief or

practice wrongly curtail that freedom.

2. A close inquiry into the First Amendment’s

original understanding confirms that textual interpretation. State conventions debating whether to

ratify the 1787 Constitution proposed amendments

aimed at securing religious freedom. See Carl H.

Esbeck, Uses and Abuses of Textualism and Originalism

in Establishment Clause Interpretation, 2011 Utah L.

Rev. 489, 508–25 (detailing the state-by-state ratification of the Constitution). Six States—Massachusetts,

New Hampshire, New York, North Carolina, South

Carolina, and Virginia—proposed amendments to

Congress before the First Congress met in 1789. Id. at

511. All but those from Massachusetts and South

Carolina sought to fortify religious freedom. See id.

at 511 n.a1. Minority coalitions in Maryland,

Massachusetts, and Pennsylvania offered similar

amendments. See The Complete Bill of Rights 12 (Neil

H. Cogan ed., 2d ed. 2015). Four of these proposals

expressly prohibited religious discrimination. See ibid.

Take Virginia. It offered an amendment declaring

that “all men have an equal, natural and unalienable

right to the free exercise of religion according to the

dictates of conscience, and that no particular religious

sect or society ought to be favored or established by

Law in preference to others.” Va. Ratifying Convention,

Proposed Amendments, June 27, 1788, reprinted in id.

at 13. The concluding clause, forbidding religious

favoritism, also appeared in a proposal from North

Carolina.2 See id. at 12–13.3

New York’s proposal likewise guaranteed religious

equality. “[T]he People have an equal, natural, and

unalienable right, freely and peaceably to Exercise

their Religion according to the dictates of Conscience,

and * * * no Religious Sect or Society ought to be

favoured or established by Law in preference of others.”

N.Y. Ratifying Convention, Proposed Amendments, July

26, 1788, reprinted in id. at 12.

Maryland’s Antifederalist minority submitted an

amendment providing that “all persons [are] equally

entitled to protection in their religious liberty.” Md.

North Carolina initially rejected the Constitution “until a

declaration of rights and other amendments were laid before

Congress or a new convention.” Pauline Maier, Ratification: The

People Debate the Constitution, 1787–1788, at 423 (2010). But the

State still conveyed amendments to Congress “almost identical to

those proposed by Virginia.” Ibid.

Rhode Island offered an amendment virtually identical to

that advanced by Virginia and North Carolina in May 1790,

nearly a year after Madison introduced the Bill of Rights. See The

Complete Bill of Rights at 13.

Ratifying Convention, Minority Proposals, Apr. 26,

1788, reprinted in ibid.

3. These State proposals influenced Madison as he

drafted what became the Bill of Rights. See Stuart

Leibiger, James Madison and Amendments to the

Constitution, 1787–1789: “Parchment Barriers,” 59 J.

S. Hist. 441, 460 (1993) (describing how Madison

“stud[ied] the two hundred or so amendments

recommended by the various state conventions” while

preparing constitutional amendments to present in

Congress); William Lee Miller, The Business of May

Next: James Madison & the Founding 252 (1992)

(describing Madison’s use of a pamphlet collecting the

amendments submitted by ratifying conventions).

On June 8, 1789, Madison offered nine amendments

in the House of Representatives. In language mirroring

the State proposals, he articulated a sweeping vision

of religious freedom:

The civil rights of none shall be abridged on

account of religious belief or worship, nor

shall any national religion be established, nor

shall the full and equal rights of conscience be

in any manner, or on any pretext, infringed.

1 Annals of Cong. 451 (Joseph Gales ed., 1834).

The House referred the amendments to a Select

Committee of eleven members, including Madison.

They revised the proposal to read, “[N]o religion shall

be established by law, nor shall the equal rights of

conscience be infringed.” Id. at 757; see also id. at 699

(report by Rep. Vining for the Select Committee).

During floor debate, Madison explained that he took

these words to mean that “Congress should not

establish a religion, and enforce the legal observation

of it by law, nor compel men to worship God in any

manner contrary to their conscience.” Id. at 758. He

reminded his fellow representatives that such

protection “had been required by some of the State

Conventions,” who feared that the Necessary and

Proper Clause “enabled [Congress] to make laws of

such a nature as might infringe the rights of

conscience, and establish a national religion.” Ibid.

Madison viewed the amendment as a way “to prevent

these effects.” Ibid. He feared both the abuse of federal

power and burdens on “the rights of conscience” from

the lawful exercise of federal power. Ibid.

Following debate, the House and Senate approved

separate amendments protecting religion. See id. at

796; S. Journal, 1st Cong., 1st Sess. 77 (1820).

A conference committee reformulated the draft into

the familiar words of the First Amendment: “Congress

shall make no law respecting an establishment of

Religion, or prohibiting the free exercise thereof.”

The Complete Bill of Rights at 8 (Oliver Ellsworth’s

handwritten notes). The requisite two-thirds majority

of both houses of Congress approved the Amendment

in that form. See 1 Annals of Cong. at 948; S. Journal

at 88.

Congress then passed a joint resolution transmitting twelve proposed amendments (including two that

were rejected) for ratification by the State legislatures.

See 1 Stat. 97 (1789). After that, the historical record

regarding the Bill of Rights all but vanishes. “We know

almost nothing about what the state legislatures

thought concerning the meanings of the various

amendments, and the press was perfunctory in its

reports, if not altogether silent.” Leonard W. Levy,

Origins of the Bill of Rights 43 (1999). Records of State

ratifying convention amendments to the 1787

Constitution and the congressional debates on the Bill

of Rights are the best primary evidence we have of the

First Amendment’s original meaning.

4. Other contemporaneous sources confirm that the

First Amendment was originally understood to entail

categorical protection against religious discrimination. Alexander Hamilton compared the governments

of the old world with the “more equal government”

of this country. Alexander Hamilton, Report on

Manufactures, Dec. 5, 1791, reprinted in Alexander

Hamilton: Writings 662 (Joanne B. Freeman ed., 2001).

He singled out “what is far more precious than mere

religious toleration—a perfect equality of religious

privileges.” Ibid.

An early constitutional scholar, William Rawle,

agreed that under the Constitution, “the equality of all

our citizens” precludes “the denial of the smallest civic

right” out of “religious intolerance.” William Rawle, A

View of the Constitution of the United States of

America 117 (1825). Justice Story likewise perceived

that the First Amendment “sought to cut off the means

of religious persecution * * * and the power of

subverting the rights of conscience in matters of

religion.” Joseph Story, Commentaries on the Constitution

of the United States 701 (Carolina Acad. Press 1987)

(1833).

5. Religious equality persisted as a central feature of

constitutional discourse when the Fourteenth Amendment extended the Constitution’s shelter for religious

freedom to the States. See Kurt T. Lash, The Second

Adoption of the Free Exercise Clause: Religious

Exemptions Under the Fourteenth Amendment, 88

Nw. U. L. Rev. 1106, 1152 (1994). Writing near the

adoption of the Fourteenth Amendment, Thomas

Cooley equated religious discrimination with persecution.

“Whatever establishes a distinction against one class

or sect is, to the extent to which the distinction

operates unfavorably, a persecution; and if based on

religious grounds, is religious persecution.” Thomas M.

Cooley, A Treatise on the Constitutional Limitations

Which Rest Upon the Legislative Power of the States of

the American Union 469 (2d ed. 1871). He stressed that

“[i]t is not mere toleration which is established in our

system, but religious equality.” Ibid.

6. Religious discrimination is repugnant to the First

Amendment. Originalist history says so. So did

Madison, Hamilton, Story, and Cooley. They read the

Religion Clauses as a right to untrammeled religious

equality. See, e.g., Hamilton, Writings at 662; Rawle, A

View of the Constitution at 119; Story, Commentaries

at 701; Cooley, Constitutional Limitations at 469. No

American should lose the right and privilege of equal

citizenship because of religious belief, practice, or

affiliation. The First Amendment makes freedom from

religious discrimination an irreducible minimum.

B. Experience with Civil Disabilities Under

English and Colonial Law Led Americans

to Reject Religious Discrimination.

The First Amendment’s prohibition on religious

discrimination reflects centuries of experience. Hardships

suffered by religious minorities under English and

colonial laws imposing civil disabilities were still fresh

in the minds of the Founding generation. These laws

conditioned civil rights on religious affiliation, belief,

or conduct. They were notorious.

1. Take English law. It imposed civil disabilities on

non-conformists (Christians outside the Church of

England). Catholics were the most visible target.

Failure to take an oath renouncing certain Catholic

doctrines, including transubstantiation, disqualified a

person from holding public office, sitting in Parliament,

or bringing a lawsuit. See, e.g., Second Test Act 1678,

§ III, 30 Car. II, stat. 2, cap. 1, reprinted in English

Historical Documents 1660–1714, at 391–94 (Andrew

Browning ed., 1953). Civic and military officials—even

schoolteachers—had to take Anglican communion or

lose their jobs. See Corporation Act 1661, § IX, 13 Car.

II, stat. 2, cap. 1, reprinted in id. at 376.

In a volume well-known to the founding generation,

Blackstone described how Catholic believers could

“bring no action at law, or suit in equity,” or “travel

above five miles from home” without a license, at the

risk of “forfeiting all their goods.” 4 William

Blackstone, Commentaries 55 (1769). They could not

even be married or buried, or have a child baptized,

except by an Anglican minister. See ibid.

A distinguished First Amendment scholar suggests

that civil disabilities were unevenly applied and

that Catholics outside of Ireland seldom experienced

these laws’ full force. See Michael W. McConnell,

Establishment and Toleration in Edmund Burke’s

“Constitution of Freedom,” 1995 Sup. Ct. Rev. 393, 402–

03. Even so, civil disabilities marginalized nonAnglicans for their faith and stigmatized them as

inferior.

2. American colonies also deployed civil disabilities.

Massachusetts Bay’s mistreatment of religious

dissidents is well known. See, e.g., Samuel Eliot

Morison, Builders of the Bay Colony 126 (1930). But

the imposition of civil disabilities was not confined to

the Puritan establishment. They appeared in other

colonies—up to the eve of the American Revolution:

In 1763, Roman Catholics as well as nonChristians, including Jews, were denied the

franchise and other rights of citizenship even

in Rhode Island * * * [.] Nor was religious

freedom of Catholics protected in Massachusetts

Bay under its charter, while in the province of

Maryland a harsh code directed toward the

complete suppression of their religion still

remained on the statute books. In Connecticut

men were being haled into court and fined or

imprisoned for the crime of separatism;

neither “unitarians” nor “deists” were capable

of holding any office. In Virginia, Baptist and

other dissenting preachers were liable to

persecution for carrying on their activities,

and so late as 1768 many of them were

actually imprisoned as disturbers of the peace.

Lawrence Henry Gipson, The Coming of the Revolution,

1763–1775, at 13 (1954) (citations omitted).

Revolutionary-era Americans came to loathe civil

disabilities. “[T]he bulk of complaints about infringement of religious liberty during the preconstitutional

period apparently concerned outright discrimination

against dissenters from the dominant sect.” David P.

Currie, The Constitution in the Supreme Court: The

First Hundred Years, 1789–1888, at 440 (1985).

3. The First Amendment thus reflects a history

of religious discrimination that Americans of the

Founding era rejected. Personal and historical

experience taught them that the line between religious

discrimination and religious persecution is thin—and

they rejected both. A categorical rule against religious

discrimination therefore fits both text and history. It

also fits this Court’s precedents.

C. This Court’s Decisions Affirm That the

Religion Clauses Prohibit Religious

Discrimination.

Decisions under the First Amendment hold that it forecloses government-sponsored religious discrimination.

Consider Trinity Lutheran Church of Columbia, Inc.

v. Comer, 582 U.S. 449 (2017). It reversed Missouri’s

rejection of a church’s application for a State subsidy

to resurface a school playground. Id. at 454–56, 467.

That decision breached the rule that “[t]he Free

Exercise Clause ‘protects religious observers against

unequal treatment.’” Id. at 458 (cleaned up) (quoting

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520, 533, 542 (1993)). As the Court explained,

“the exclusion of Trinity Lutheran from a public

benefit for which it is otherwise qualified, solely

because it is a church, is odious to our Constitution all

the same, and cannot stand.” Id. at 467.

Trinity Lutheran’s use of the word odious appears in

a quotation by H.M. Brackenridge, a nineteenthcentury Maryland lawmaker who advocated “end[ing]

the State’s disqualification of Jews from public office.”

Id. at 467. Sounding like Cooley, see Cooley,

Constitutional Limitations at 469, Brackenridge

proclaimed that “[a]n odious exclusion from any of the

benefits common to the rest of my fellow-citizens, is a

persecution, differing only in degree, but of a nature

equally unjustifiable with that, whose instruments are

chains and torture.” Trinity Lutheran, 582 U.S. at 467

(internal quotation marks omitted) (quoting Speech by

H.M. Brackenridge, Dec. Sess. 1818, reprinted in H.

Brackenridge et al., Speeches in the House of Delegates

of Maryland 64 (1829)).

In a similar vein, Espinoza v. Montana Department

of Revenue, 591 U.S. 464 (2020), reversed a Montana

Supreme Court decision eliminating a scholarship

program on the ground that it violated a no-aid

provision of the State constitution. Id. at 471–73, 489.

The same “rule against express religious discrimination” controlled. Id. at 484. And the same conclusion

followed—that such discrimination is “‘odious to our

Constitution’ and ‘cannot stand.’” Id. at 489 (quoting

Trinity Lutheran, 582 U.S. at 467).

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

implicated in this case—followed the same pattern.

Carson rejected Maine’s denial of tuition assistance to

families whose chosen schools the State deemed

“sectarian.” Id. at 775, 789. That conclusion stands on

this “unremarkable” principle, id. at 779 (quoting

Trinity Lutheran, 582 U.S. at 462): “the Free Exercise

Clause [does] not permit [a State] to ‘expressly

discriminate against otherwise eligible recipients by

disqualifying them from a public benefit solely because

of their religious character.’” Ibid. (cleaned up)

(quoting Trinity Lutheran, 582 U.S. at 462). Echoing

earlier precedents, Carson added that “[s]uch

discrimination” is “‘odious to our Constitution’ and

[cannot] stand.” Ibid. (quoting Trinity Lutheran, 582

U.S. at 467).

All three decisions describe religious discrimination

as odious. In Brackenridge’s day, the word meant

“[h]ateful; deserving hatred.” Odious, 2 Noah Webster,

An American Dictionary of the English Language

(1828). So too, today. By using odious to describe laws

that discriminate based on religion, decisions from

Trinity Lutheran to Carson call to mind the history of

civil disabilities canvassed above and reinforce the

repugnance of

Constitution.

religious discrimination

the

Understanding

religious

discrimination

completely barred by the First Amendment reflects

other precedents too. They declare that “[t]he Free

Exercise Clause categorically prohibits government

from regulating, prohibiting, or rewarding religious

beliefs as such.” McDaniel v. Paty, 435 U.S. 618, 626

(1978) (plurality opinion). Or, the cases say, “a law

targeting religious beliefs as such is never permissible.” Lukumi, 508 U.S. at 522. Encompassed within

that rule is any law that “discriminates against some

or all religious beliefs or regulates or prohibits conduct

because it is undertaken for religious reasons.” Id. at

532. This “fundamental nonpersecution principle of

the First Amendment” is “so well understood that few

violations are recorded in [the Court’s] opinions.” Id. at

523. Other decisions on the point are equally forceful.

See Niemotko v. Md., 340 U.S. 268, 272 (1951); Fowler

v. R.I., 345 U.S. 67, 69 (1953).

Religious discrimination likewise offends the

Establishment Clause. Only last year, this Court

unanimously reaffirmed that “‘[t]he clearest command

of the Establishment Clause’ is that the government

may not ‘officially prefer’ one religious denomination

over another.” Cath. Charities Bureau, Inc. v. Wis. La.

& Indus. Rev. Comm’n, 605 U.S. 238, 247 (2025)

(cleaned up) (quoting Larson v. Valente, 456 U.S. 228,

244 (1982)). Government favoritism toward certain

religions “convey[s] to members of other faiths that

‘they are outsiders, not full members of the political

community.’” Id. at 248 (quoting Santa Fe Indep.

Sch. Dist. 530 U.S. at 309). Forbidden are “laws

establish[ing] a preference for certain religions based

on the content of their religious doctrine, namely, how

they worship, hold services, or initiate members and

whether they engage in those practices at all.” Id. at

248–49. “Such official differentiation on theological

lines is fundamentally foreign to our constitutional

order.” Id. at 249. This ban on religious discrimination

squarely applies when the government administers

benefits like the preschool funding program here.

Precedent thus joins constitutional text and history

in establishing that laws discriminating on the basis

of religious belief, practice, or affiliation categorically

violate both Religion Clauses. This Court has never

approved government-sponsored religious discrimination. Recognizing the categorical rule against religious

discrimination simply acknowledges in name what the

Court has long done in fact.

Some say that religious discrimination should be

merely subject to strict scrutiny. Not so. The Religion

Clauses properly recognize other categorical rules,

including the proscriptions on religious tests for public

office and interference in a religious organization’s

selection of its minister. See Torcaso v. Watkins, 367

U.S. 488, 495 (1961); Hosanna-Tabor Evangelical

Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 196

(2012). The same holds true for religious discrimination. No reason, however superficially compelling, can

justify a law that treats people and institutions worse

because of their religion.4 When “the First Amendment

A categorical proscription on religious discrimination does not

impede the government from adopting laws and policies to

prevent imminent physical harm. See State ex rel. Swann v. Pack,

527 S.W.2d 99 (Tenn. 1975) (underage snake handling), cert.

denied, 424 U.S. 954 (1976); People ex rel. Wallace v. Labrenz, 104

N.E.2d 769 (Ill. 1952) (child’s blood transfusion). But that

qualification does not require a lawmaker to classify based on

religion when the lawmaker can classify based on physical harm.

has struck the balance for us,” it is that balance—

not a case-by-case evaluation—that should prevail.

Hosanna-Tabor, 565 U.S. at 196.5

Freedom from religious discrimination is, in short,

the irreducible minimum guaranteed by the First

Amendment.

D. Excluding Petitioners from Colorado’s

Program Because of Their Religion Is

Religious Discrimination.

Colorado violated the First Amendment ban on

religious discrimination when it excluded petitioners

from the State preschool education funding program.

It makes no difference that the State would allow

funding for religious schools that subscribe to its

LGBT nondiscrimination policy. The Free Exercise

Clause guards against the “covert suppression of

particular religious beliefs.” Lukumi, 508 U.S. at 534

(internal quotation marks omitted) (quoting Bowen v.

Roy, 476 U.S. 693, 703 (1986) (plurality opinion)). And

there’s nothing covert about Colorado’s demand. It

requires Catholic schools to alter their admissions and

employment practices despite contrary Catholic religious

beliefs, or the schools will get no State preschool

funding. To their credit, the schools chose conscience.

In any event, the public safety qualification is immaterial here,

since Colorado does not allege imminent physical harm as its

rationale for withholding State funding from petitioners.

Judicial balancing is, of course, appropriate in other contexts.

Decades of experience under RFRA and RLUIPA demonstrate

“the feasibility of case-by-case consideration of religious

exemptions to generally applicable rules.” Gonzales v. O Centro

Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 436 (2006).

An unseen line connects England’s Second Test Act

with Colorado’s LGBT nondiscrimination rule. Religious

beliefs regarding homosexuality and gender identity

are deeply rooted in Catholic scripture, practice,

centuries of moral teaching, and canon law. Forcing a

Catholic school to accept Colorado’s LGBT policy

resembles English law’s notorious demand for Catholics

to forswear the doctrine of transubstantiation or lose

their civil rights. The State has put these schools to a

choice between widely available government aid and

practicing their religion. And that, the Constitution

forbids.

Colorado’s exclusion of petitioners from a statewide

program because of their faith violates the First

Amendment’s categorical rule against religious

discrimination. Colorado’s decision is therefore void.

II. THE FIRST AMENDMENT’S CATEGORICAL RULE

AGAINST RELIGIOUS DISCRIMINATION APPLIES

WITHOUT PROOF OF HOSTILITY.

A. Discrimination

Treatment—Not

Treatment.

Means

Merely

Unequal

Hostile

The Tenth Circuit required petitioners to provide

proof of “hostility” to establish a free exercise violation.

Pet.App.24a–28a. But religious discrimination offends

the First Amendment by itself. Overt hostility toward

religious beliefs, practices, and affiliations indisputably transgresses “the neutrality required by the Free

Exercise Clause.” Masterpiece Cakeshop v. Colo. Civ.

Rights Comm’n, 584 U.S. 617, 619 (2018). But proof

of hostility is unnecessary to establish a claim of

religious discrimination. Unequal treatment violates

the Free Exercise Clause, without more.

1. Decisions under the Free Exercise Clause

consistently zero in on disparate treatment based on

religion, not on hostile treatment. When government

treats a person or group worse because of religion, the

constitutional injury is complete.

Consider Fowler. There, the Court reversed the

conviction of a Jehovah’s Witness minister for

preaching in a public park when other denominations

“could conduct their church services” in the park

“without violating the ordinance.” 345 U.S. at 69.

Singling out the minister in this way amounted to

“discrimination * * * barred by the First and

Fourteenth Amendments.” Ibid.

Or McDaniel. There, the Court invalidated a

Tennessee statute that barred ministers from serving as

delegates to a State constitutional convention. 435 U.S.

at 620, 629. The statute “discriminated against

McDaniel by denying him a benefit solely because of

his ‘status as a minister.’” Trinity Lutheran, 582 U.S. at

459 (emphasis omitted) (quoting McDaniel, 435 U.S. at

627).

Trinity Lutheran confirms that unequal treatment

based on religion contravenes the First Amendment

regardless of hostility. There, the constitutional

objection was not hostility toward religious schools,

but rather the denial of “a generally available benefit

solely on account of religious identity.” Id. at 458. In

“expressly discriminat[ing] against otherwise eligible

recipients by disqualifying them from a public benefit

solely because of their religious character,” the State

“impose[d] a penalty on the free exercise of religion.”

Id. at 462. Unequal treatment, not religious animus,

was the State’s fatal error. Later decisions following

Trinity Lutheran reached the same conclusion. See

Espinoza, 591 U.S. 464; Carson, 596 U.S. 767.

Tandon v. Newsom, 593 U.S. 61 (2021), adopted a

similar approach. There, California’s COVID-19

restrictions limited at-home religious gatherings to

only three households but permitted a variety of

indoor businesses—including hair salons, retail stores,

and indoor restaurants—to bring together larger

groups of people. Id. at 63. There were no expressions

of hostility toward religion, just unequal treatment.

Yet discrimination, without more, supported a likely

free exercise violation. Id. at 63–65. The Court was

unsparing: government action raises serious free

exercise concerns “whenever [it] treat[s] any

comparable secular activity more favorably than

religious exercise.” Id. at 62.

2. Equal protection doctrine illustrates how other

areas of constitutional law do not require evidence of

animus or hostility to claim discrimination.

Start with economic discrimination. Allegheny

Pittsburgh Coal Co. v. County Commissioner of Webster

County, 488 U.S. 336 (1989), struck down a property

tax scheme that assessed recently purchased properties based on their purchase price but assessed other

properties based on outdated prior-year assessments.

Id. at 344–46. Over time, this caused disparities in tax

assessments for similarly situated properties based on

how recently the property had been sold. Id. at 341–

42. The Court held that the differential treatment

lacked a rational basis and struck down the law. Id. at

344–46. There was no suggestion that the unequal

assessments were motivated by animus toward recent

property purchasers.

Or consider sex discrimination. In Reed v. Reed, 404

U.S. 71 (1971), the Court invalidated an Idaho law that

gave automatic preference to men over women when

persons of different sexes were equally qualified to

administer an estate. Id. at 75–77. The law’s

differential treatment of men and women lacked any

“fair and substantial relation to the object of the

legislation” and therefore, in the Court’s view, represented “the very kind of arbitrary legislative choice

forbidden by the Equal Protection Clause.” Id. at 76.

Hostility toward women took no role in the analysis.

So too with the admissions policies in Mississippi

University for Women v. Hogan, 458 U.S. 718 (1982),

and United States v. Virginia, 518 U.S. 515 (1996). Both

cases confronted discrimination unsupported by any

substantial relationship to the policies’ putative

objectives—not animus against the disfavored sex. See

Mississippi Univ., 458 U.S. at 723–31; Virginia, 518

U.S. at 531–46.

Petitioners have shown that Colorado has

discriminated against them because of religion. Proof

of animus or hostility is unnecessary to that claim—

and the Tenth Circuit was wrong to say otherwise.

B. This

Court

Should

Affirm

the

Categorical Rule Against Religious

Discrimination to Correct Lower

Courts.

Carson makes clear that Trinity Lutheran’s prohibition on denying public benefits based solely on religion

is categorical. A State may not “exclude some members

of the community from an otherwise generally

available public benefit because of their religious

exercise,” regardless of whether the benefit is

ultimately put to a religious or secular use. Carson,

596 U.S. at 781.

The Tenth Circuit brushed aside Carson as inapplicable, writing that Colorado’s universal preschool

(UPK) program does not exclude all “faith-based

preschools” from the program—only faith-based

schools that decline the State’s LGBT nondiscrimination requirement. Pet.App.21. Colorado’s exclusion of

schools that reject its LGBT policy, however, is

religious discrimination—and Carson explains why.

There, Maine defended its denial of tuition funding

to parents wishing to educate their children at

religious schools on the ground that the State “offers a

benefit limited to private secular education.” 596 U.S.

at 784. That formulation was “just another way of

saying that Maine does not extend tuition assistance

payments” to such parents. Ibid. Discerning that “the

definition of a particular program can always be

manipulated to subsume the challenged condition,”

the Court rejected the State’s attempt to “recast a

condition on funding” in a way that would see “the

First Amendment reduced to a simple semantic

exercise.” Ibid. (cleaned up) (quoting Agency for Int’l

Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 215

(2001)).

Permitting a State to manipulate legislative classifications on ostensibly neutral and general grounds

would be dangerous. Because religious discrimination

falls outside Smith’s neutral-and-generally-applicablelaw standard, it is immaterial whether a law

discriminating against religion can be framed in

neutral and generally applicable terms. See Smith,

494 U.S. at 877. Likewise, “[t]he Free Exercise Clause,

like the Establishment Clause, extends beyond facial

discrimination” to proscribe “covert suppression of

particular religious beliefs.” Lukumi, 508 U.S. at 534

(internal quotation marks omitted) (quoting Bowen,

476 U.S. at 703). Otherwise, Carson and related

decisions would be rendered a dead letter. After all,

State officials can easily reframe law and policy in

superficially benign terms. But the First Amendment

is “more than a pleading requirement, and compliance

with it * * * more than an exercise in cleverness and

imagination.” Nollan v. Cal. Coastal Comm’n, 483 U.S.

825, 841 (1987).

Here, Colorado has borrowed a page from Maine’s

playbook. Eligibility for funding under the UPK

program is framed in terms of all qualified schools who

accept the State’s LGBT nondiscrimination policy. By

excluding religious schools whose religious beliefs

preclude acceptance of that condition, the State

“manipulate[s]” its programmatic definition “to subsume

the challenged condition.” Carson, 596 U.S. at 784.

Colorado cannot sidestep the right to free exercise by

structuring eligibility to include some faith-based

schools while excluding others. As in Carson, the

funding condition reveals the program’s unconstitutionality. To say that petitioners are ineligible for

UPK funding because their longstanding religious

beliefs and practices run afoul of the State’s LGBT

policy is to say that they are ineligible because of their

religion. That is religious discrimination.

Nor is the Tenth Circuit alone in misapplying

Carson. Two later decisions from Maine involved

district courts that sustained the State’s discriminatory policies on the same ground rejected in Carson. St.

Dominic Academy v. Makin, 744 F. Supp. 3d 43

(D. Me. 2024), concluded that the same Maine tuition

assistance program at issue in Carson does not

discriminate based on religion. This, even though the

Maine program requires participating schools to adopt

LGBT nondiscrimination policies like Colorado’s here.

Id. at 68–77. The court found Carson inapplicable

because the State’s policies “appl[y] not just to

religious schools, but to all ‘educational institutions’

that ‘permit religious expression.’” Id. at 77 (cleaned

up) (quoting 5 Me. Rev. Stat. § 4602(5)(D)). Similarly,

in Crosspoint Church v. Makin, 719 F. Supp. 3d 99 (D.

Me. 2024), the court perceived no First Amendment

objection to the same State funding condition because

the nondiscrimination requirement does not “restrict[]

practices because of their religious nature,” even

though the practical effect is that “some religious

institutions [will] not * * * apply for tuition funding.”

Id. at 122 (emphasis added) (quoting Fulton v. City of

Philadelphia, 593 U.S. 522, 533 (2021)).

And in Woolard v. Thurmond, 170 F.4th 701 (9th Cir.

2026), the Ninth Circuit held that Carson does not

apply to funding for homeschool programs operated by

public charter schools. Id. at 707–10. The court of

appeals reasoned that because states may offer

“strictly secular” public education, they may decline to

subsidize homeschool materials with religious content.

Id. at 708 (internal quotation marks omitted) (quoting

Carson, 596 U.S. at 785). Yet that reasoning overlooks

the obvious constitutional defect that parents in such

programs are denied access to a public benefit based

solely because of their religion.

These cases demonstrate the need for this Court to

reaffirm Carson’s central holding—that government

policies denying public benefits because of religious

beliefs and practices are no less unconstitutional than

policies that deny benefits because of religious

character. A religious institution exercises its faith

through its beliefs and practices. Excluding a religious

institution from a government program because of its

beliefs or practices is no different than excluding it

because of its religion. Both offend the First Amendment.

III. RELIGIOUS DISCRIMINATION HARMS RELIGIOUS

PEOPLE AND INSTITUTIONS.

A. Religious Education Reflects the

Exercise of First Amendment Rights.

1. “The history and culture of Western civilization

reflect a strong tradition of parental concern for the

nurture and upbringing of their children.” Wisconsin v.

Yoder, 406 U.S. 205, 232 (1972). “This primary role of

the parents in the upbringing of their children is now

established beyond debate as an enduring American

tradition.” Ibid.6 Parental authority necessarily “include[s]

the inculcation of moral standards, religious beliefs,

and elements of good citizenship.” Id. at 233. To that

end, the Free Exercise Clause safeguards “the rights

of parents to direct ‘the religious upbringing’ of their

children.” Espinoza, 591 U.S. at 486 (quoting Yoder,

406 U.S. at 213). Not only that. “[T]hose rights are

violated by government policies that ‘substantially

interfere with the religious development’ of children.”

Mahmoud, 606 U.S. at 546 (cleaned up) (quoting Yoder,

406 U.S. at 218). Governmental interference with a

parent’s religious upbringing of a child “carries with it

precisely the kind of objective danger to the free

exercise of religion that the First Amendment was

designed to prevent.” Ibid. (internal quotation marks

omitted) (quoting Yoder, 406 U.S. at 218).

2. The practice of educating children in their

parents’ religion is “vital to many faiths.” Our Lady of

A related line of decisions under the Due Process Clause

affirms “the fundamental right of parents to make decisions

concerning the care, custody, and control of their children.” Troxel

v. Granville, 530 U.S. 57, 66 (2000); accord Pierce v. Soc’y of the

Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510 (1925);

Meyer v. Neb., 262 U.S. 390 (1923).

Guadalupe Sch. v. Morrissey-Berru, 591 U.S. 732, 754

(2020). For some, “the religious education of children is

not merely a preferred practice but rather a religious

obligation.” Mahmoud, 606 U.S. at 547.

Take Roman Catholicism. It teaches that “[t]he right

and the duty of parents to educate their children are

primordial and inalienable.” Catechism of the Catholic

Church § 2221 (2d ed. 2019). “Parents have the first

responsibility for the education of their children.” Id. §

2223. And “[a]s those first responsible for the education of their children, parents have the right to choose

a school for them which corresponds to their own

convictions.” Id. § 2229. “This right is fundamental.”

Ibid. Given these beliefs, it should be unsurprising

that for the individual petitioners, the Sheleys, their

“Catholic faith directs them to provide a Catholic

education for their children.” Pet.8. Nor are the

Sheleys alone in believing that educating their

children in the faith is a religious duty. Many religions

teach the same precept.

“Protestant churches, from the earliest settlements

in this country, viewed education as a religious

obligation.” Our Lady of Guadalupe, 591 U.S. at 754.

More recently, “non-denominational Christian schools

have proliferated with the aim of inculcating Biblical

values in their students.” Id. at 754–55. “Many such

schools expressly set themselves apart from public

schools that they believe do not reflect their values.”

Id. at 755.

“The Church of Jesus Christ of Latter-day Saints

has a long tradition of religious education, with roots

in revelations given to Joseph Smith.” Id. at 756. Those

revelations command parents to “bring up your

children in light and truth.” Doctrine & Covenants

93:40. And Latter-day Saints are enjoined to “seek ye

out of the best books words of wisdom; seek learning,

even by study and also by faith.” Doctrine & Covenants

88:118. Brigham Young University, the Church’s

flagship school, and its sister universities and colleges

within the Church Educational System, are living

monuments to those doctrines. So too are the Church’s

seminary and institute programs, which educate

young Church members in the Gospel of Jesus Christ.

“Religious education is a matter of central

importance in Judaism.” Our Lady of Guadalupe, 591

U.S. at 755. In particular, “the Torah is understood to

require Jewish parents to ensure that their children

are instructed in the faith.” Ibid. To that end, “[t]he

contemporary American Jewish community continues

to place the education of children in its faith and rites

at the center of its communal efforts.” Ibid. (internal

quotation marks omitted) (quoting Brief for Amici

Curiae Church of God in Christ, Inc. and Union of

Orthodox Jewish Congregations of America in Support

of Petitioners at 15, Our Lady of Guadalupe, 591 U.S.

732 (No. 19-267)).

These examples from “the rich diversity of religious

education in this country” demonstrate that “educating

the young in the faith” is fundamental for many

religions. Id. at 756. No wonder. Without religious

education, no religion can survive to the next generation.

3. The Sheleys’ claim to constitutional protection

for their decision to educate their children in Catholic

schools finds deep roots in this Court’s decisions under

the Free Exercise Clause.

In Mahmoud, religious parents challenged a school

district’s reading program that used LGBT-themed

storybooks for elementary-aged schoolchildren. 606

U.S. at 528–30. The Court agreed that denying the

parents prior notice and opt-outs inflicted a substantial burden on their religious exercise. Id. at 569.

Mirabelli v. Bonta, 607 U.S. 492 (2026) (per curiam),

involved California policies that “prevent[ed] schools

from telling [parents] about their children’s efforts to

engage in gender transitioning at school unless the

children consent to parental notification.” Id. at 493.

There, parents seeking religious exemptions were

found “likely to succeed on the merits of their Free

Exercise Clause claim.” Id. at 496. In fact, the Court

adjudged that “the intrusion on parents’ free exercise

rights here—unconsented facilitation of a child’s

gender transition—is greater than the introduction of

LGBTQ storybooks we considered sufficient to trigger

strict scrutiny in Mahmoud.” Ibid. And the Court

added that “California’s policies will likely not survive

the strict scrutiny that Mahmoud demands.” Ibid.

The Sheleys’ free exercise claim is fully consistent

with Mahmoud and Mirabelli. If anything, they ask

less of the State. They seek only religious equality—

that the tenets of their faith not be the reason for

denying their chosen schools the same public funding

available to comparable schools. In that, they stand on

solid ground. Colorado’s contrary policy flies in the face

of the First Amendment.

B. Denying Public Funding for Education

Because of a School’s Religion Harms

the School and the Families It Serves.

Excluding religious schools from public benefits not

only offends the Constitution. It inflicts concrete

harms on the school and the families it serves.

Consider such harms in this case. Colorado’s

condition on UPK funding—compliance with the

State’s LGBT policy—drove Catholic schools to close

their doors. Without the State financial support

available to comparable schools, Wellspring Catholic

Academy and Guardian Angels Catholic School lost

enrollment and had to close. Pet.12. Across the

Archdiocese, enrollment in parish preschools has

dropped nearly 20% since UPK was enacted. Ibid. The

district court found that “Plaintiff Preschools have

experienced harm from not participating in the UPK

program.” Pet.App.83a.

The consequences of religious discrimination are

tangible in other cases, too. Carson voided a condition

in Maine’s tuition subsidy program that limited

benefits to “nonsectarian” schools. 596 U.S. at 789. The

lead plaintiffs, the Carsons, sent their daughter to a

Christian school because its “worldview aligns with

their sincerely held religious beliefs.” Petition for Writ

of Certiorari at 7, Carson, 596 U.S. 767 (No. 20-1088).

Yet because of the State’s exclusionary policy, “the

Carsons [had to] pay their daughter’s tuition out-ofpocket.” Id. at 8. Another family, the Nelsons, were

forced by the lack of State support to send their child

to a secular high school “despite the Nelsons’ firm

conviction that [a Christian school] would better meet

their educational needs and align with the family’s

beliefs.” Id. at 9.

Espinoza involved similar injuries. There, the

Montana Department of Revenue denied scholarship

funds to any school “owned or controlled in whole or in

part by any church, religious sect, or denomination.”

591 U.S. at 470 (internal quotation marks omitted)

(quoting Mont. Admin. R. § 42.4.802(1)(a) (2015)). An

administrative assistant at a Catholic high school

testified that “[t]he students with these scholarships

are all lower income.” Appendix to Petition for Writ of

Certiorari at 129, Espinoza, 591 U.S. 464 (No. 18-1195).

“This means that they come from families that make

$25,000 or less each year.” Id. at 129–30. The State’s

discriminatory policy withheld scholarship funds from

families least able to bear the loss.

Then there’s Trinity Lutheran. It held that

Missouri’s refusal to consider a church’s application for

a State subsidy for playground resurfacing violated

the free exercise rights of a Lutheran preschool. 582

U.S. at 466. The preschool documented that the

existing pea gravel playground surface “continually

erodes” and “creates a trip hazard.” Petition for Writ of

Certiorari at 6, Trinity Lutheran, 582 U.S. 449 (No. 15577). In its application for State funding, the preschool

explained that the pea gravel is “unforgiving if/when a

child falls and thereby poses a basic safety hazard.” Id.

at 6–7. Rejecting the church’s application because it is

a church risked injuries to young children that a

resurfaced playground would have eliminated.

Lower court decisions further demonstrate how

religious discrimination in public funding causes

tangible harms.

In InterVarsity Christian Fellowship/USA v. University

of Iowa, 5 F.4th 855 (8th Cir. 2021), a Christian student

club required leadership applicants to affirm that

same-sex relationships contradict the Bible. Id. at

860. “[E]mployees of the University of Iowa targeted”

the organization for alleged violations of the

university’s Human Rights Policy, leading to the loss

of “money, participation in University publications, use

of the University’s trademark, and access to campus

facilities.” Id. at 859. Business Leaders in Christ v.

University of Iowa, 991 F.3d 969 (8th Cir. 2021), arose

from the same conflict. Students belonging to a

different religious organization lost access to “several

benefits, including eligibility to apply for funds from

mandatory Student Activity Fees, inclusion in

University publications, utilization of the University’s

trademarks, and eligibility to use campus meeting

facilities and outdoor spaces.” Id. at 972.

Or take Loffman v. California Department of

Education, 119 F.4th 1147 (9th Cir. 2024). There,

California denied funding for disabled children from

Orthodox Jewish families because they did not attend

“nonsectarian” schools. Id. at 1153. The families

explained that “for modern Orthodox Jews, enrolling

their children in a dual curriculum Jewish day school

is ‘virtually mandatory’” to fulfill their “duty to

transmit Jewish religious beliefs and practices to their

children.” Ibid. Jewish students with developmental

disabilities lost access to speech therapy, kosher meal

plans, and special education and related services. Id.

at 1153, 1168–69.

None of these harms is the inevitable consequence

of administering complex public programs. Concrete

injuries arise from disregarding a principle this Court

articulated decades ago. Under the First Amendment,

a State “cannot exclude individual Catholics, Lutherans,

Mohammedans, Baptists, Jews, Methodists, Nonbelievers, Presbyterians, or the members of any other

faith, because of their faith, or lack of it, from receiving

the benefits of public welfare legislation.” Everson v.

Bd. of Educ., 330 U.S. 1, 16 (1947). That nondiscrimination rule necessarily bars exclusion based

on basic elements “of their faith,” such as ancient

Christian and Jewish doctrines and standards related

to sexuality and gender. Colorado breached that

principle by denying petitioners State preschool

funding because of their religion. That exclusion not

only offends the Constitution—it inflicts concrete

harms as well.

CONCLUSION

The text and history of the First Amendment affirm

that the Religion Clauses categorically prohibit

religious discrimination. Laws withholding government benefits because of a recipient’s religious beliefs,

practices, or affiliations are indistinguishable from the

civil disabilities universally condemned at the Founding.

Colorado’s UPK program discriminates against petitioners by putting them to the choice of abandoning

their faith or forfeiting equal treatment. And that, the

Constitution forbids. The Tenth Circuit’s decision

should be reversed.

Respectfully submitted,

R. SHAWN GUNNARSON

Counsel of Record

CHRISTOPHER A. BATES

ALAN M. HURST

JAROM M. HARRISON

KRISTEN CLARKE

KIRTON | MCCONKIE

36 South State Street

Suite 1900

Salt Lake City, Utah 84111

(801) 328-3600

sgunnarson@kmclaw.com

Counsel for Amici Curiae

July 2, 2026

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.