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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No. 25-581
In the Supreme Court of the United States
________________
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.,
________________
Respondents.
On Writ of Certiorari to the
United States Court of Appeals
for the Tenth Circuit
________________
BRIEF FOR AMICUS CURIAE UNITED STATES
CONFERENCE OF CATHOLIC BISHOPS
SUPPORTING PETITIONERS
________________
MARK M. ROTHROCK
LEHOTSKY COHN LLP
8513 Caldbeck Drive
Raleigh, NC 27615
DANIELLE K. GOLDSTEIN
LEHOTSKY COHN LLP
3280 Peachtree Road NE
Atlanta, GA 30305
STEVEN P. LEHOTSKY
Counsel of Record
JONATHAN E. DEWITT
LEHOTSKY COHN LLP
200 Massachusetts Ave. NW
Suite 700
Washington, DC 20001
(512) 693-8350
steve@lehotskycohn.com
Counsel for Amicus Curiae
TABLE OF CONTENTS
Table of Authorities .................................................... ii
Interest of Amicus Curiae .......................................... 1
Summary of Argument ............................................... 2
Argument .................................................................... 5
I.
The Tenth Circuit’s decision should be
reversed because it misapplied Carson,
Espinoza, and Trinity Lutheran. ........................ 5
II. The Tenth Circuit’s decision will greatly
harm those that rely on faith-based social
services, who are some of our society’s most
vulnerable. ......................................................... 14
A. Colorado is not alone in adopting facially
neutral laws that punish religious
exercise in practice. .................................... 15
B. If Catholic service organizations are
driven from the public square, the harm
to communities most in need would be
immense. ..................................................... 19
Conclusion................................................................. 27
(i)
ii
TABLE OF AUTHORITIES
Page(s)
Cases
303 Creative LLC v. Elenis,
600 U.S. 570 (2023) ................................................ 15
Agency for Int’l Dev. v. All. for Open Soc’y
Int’l, Inc.,
570 U.S. 205 (2013) ................................................ 14
Bowen v. Roy,
476 U.S. 693 (1986) ................................................ 10
Carson v. Makin,
596 U.S. 767 (2022) .............. 2, 3, 8, 9, 11, 12, 13, 14
Cath. Charities Bureau, Inc. v. Wis. Lab. &
Indus. Rev. Comm’n,
605 U.S. 238 (2025) .................................................. 9
Church of Lukumi Babalu Aye, Inc. v. City of
Hialeah,
508 U.S. 520 (1993) .................................. 3, 4, 10, 15
Crosspoint Church v. Makin,
719 F. Supp. 3d 99 (D. Me. 2024) .......................... 16
Espinoza v. Mont. Dep’t of Revenue,
591 U.S. 464 (2020) ...................................... 2, 5, 6, 9
Fulton v. City of Phila.,
2018 WL 11376235 (E.D. Pa. May 16, 2018) ........ 23
Fulton v. City of Phila.,
593 U.S. 522 (2021) ................................................ 17
iii
Gillette v. United States,
401 U.S. 437 (1971) ................................................ 10
Kennedy v. Bremerton Sch. Dist.,
597 U.S. 507 (2022) ................................................ 13
Masterpiece Cakeshop, Ltd. v. Colo. C.R.
Comm’n,
584 U.S. 617 (2018) ................................................ 15
Nat’l Rifle Ass’n v. Vullo,
602 U.S. 175 (2024) .................................................. 9
Obergefell v. Hodges,
576 U.S. 644 (2015) .................................................. 3
St. Dominic Acad. v. Makin,
744 F. Supp. 3d 43 (D. Me. 2024) ...................... 4, 16
State v. Arlene’s Flowers, Inc.,
441 P.3d 1203 (Wash. 2019) .................................. 16
Thomas v. Rev. Bd. of Ind. Emp. Sec. Div.,
450 U.S. 707 (1981) ............................................ 6, 10
Trinity Lutheran Church of Columbia, Inc. v.
Comer,
582 U.S. 449 (2017) .................................... 2, 5, 6, 12
W. Va. State Bd. of Educ. v. Barnette,
319 U.S. 624 (1943) ................................................ 18
Walz v. Tax Comm’n of City of N.Y.,
397 U.S. 664 (1970) ................................................ 10
Wisconsin v. Yoder,
406 U.S. 205 (1972) ................................................ 10
iv
YU Pride All. v. Yeshiva Univ.,
180 N.Y.S.3d 141 (N.Y. App. Div. 2022) ............... 16
Statutes
Act 164, § 19, 2026 Vt. Acts & Resolves 18
(to be codified at 3 Vt. Stat. Ann. § 24) ................. 17
H.B. 1, Gen. Assemb., Reg. Sess. (Ky. 2026) .......... 18
H.B. 26-1292, 75th Gen. Assemb., 2d Reg.
Sess. (Colo. 2026) ................................................... 15
H.B. 359, 2026 Gen. Assemb., Reg. Sess. (Va.
2026) ....................................................................... 17
S.B. 915, 2026 Gen. Assemb., Reg. Sess.,
Edition 1 (N.C. 2026) ............................................. 18
Constitutions
Colo. Const. art. IX, §§ 7, 8......................................... 7
Other Authorities
2021–2022 Highlights, NCEA,
https://perma.cc/6Z2M-ZRX7 ................................. 21
Aaron Tang, Opinion, There’s a Way to
Outmaneuver the Supreme Court, and
Maine Has Found It, N.Y. TIMES (June 23,
2022), https://perma.cc/L36M-GKRT .................... 16
Anna Faria & Grant Clayton, Fruits of the
Vine: The Economic Impact of the Catholic
Church in Minnesota (Feb. 2025),
https://perma.cc/LTD3-4Y8H. ............................... 25
v
Br. of Amicus USCCB, et al., Carson v.
Makin,
No. 20-1088 (U.S. Sept. 10, 2021) ........................... 1
Br. of Amicus USCCB, et al., Espinoza v.
Mont. Dep't of Revenue,
No. 18-1195 (U.S. Sept. 18, 2019) ........................... 1
Br. of Amicus USCCB, et al., Trinity
Lutheran Church of Columbia, Inc. v.
Pauley,
No. 15-577 (U.S. Apr. 21, 2016)............................... 1
Brian J. Grim & Melissa E. Grim, Belief,
Behavior, and Belonging: How Faith Is
Indispensable in Preventing and
Recovering from Substance Abuse 58 J.
Religion & Health 1713 (2019). ............................. 24
Brian J. Grim & Melissa E. Grim, The Socioeconomic Contribution of Religion to
American Society: An Empirical Analysis
12 Interdisc. J. Rsch. on Religion 2 (2016). .......... 23
Cath. Charities USA, Pathways Forward:
2024 Annual Report,
https://perma.cc/PFY3-JZSY ........................... 20, 21
Cath. Charities, Archdiocese of N.Y., 2023
Annual Report: Charity in Action,
https://perma.cc/GF2U-TLLH ............................... 23
Cath. Relief Servs., 2024 Annual Report
(2025), https://perma.cc/RD3W-5GQC .................. 20
vi
Catholic Health Association of the United
States, About Us: Facts & Statistics (June
2026), https://perma.cc/D76U-M8GB .................... 22
Catholic Health Care in the United States,
CHA (Apr. 2025), https://perma.cc/4XPEL565 ........................................................................ 22
Compl., Crosspoint Church v. Makin,
No. 1:23-cv-00146 (D. Me. Mar. 27, 2023) .............. 4
Donald W. Hensel, Religion and the Writing
of the Colorado Constitution, 30 Church
History No. 3 (1961)................................................. 7
Edwin I. Hernández et al., Gatherings of
Hope: How Religious Congregations
Contribute to the Quality of Life in Kent
County (Nov. 2008),
https://perma.cc/D7YC-EZT9 ................................ 24
High School Graduation Rates, Inst. of Educ.
Scis. (May 2024), https://perma.cc/T2WNZ6EF ....................................................................... 21
Jeri Eckhart Queenan, et al., Elevating the
Role of Faith-Inspired Impact in the Social
Sector, The Bridgespan Grp. (Jan. 2021),
https://perma.cc/BH87-7JEK................................. 20
Joseph P. Viteritti, Blaine’s Wake: School
Choice, the First Amendment, and State
Constitutional Law, 21 Harv. J.L. & Pub.
Pol’y 657 (1998) ........................................................ 6
Karl Zinsmeister, Less God, Less Giving?:
Religion and Generosity Feed Each Other
vii
in Fascinating Ways, PHILANTHROPY
(Winter 2019), https://perma.cc/UCQ7X8JY ....................................................................... 22
Kim S. Rueben & Megan Randall, Balanced
Budget Requirements: How States Limit
Deficit Spending (Nov. 27, 2017),
https://perma.cc/85NR-N3UA................................ 26
Nat’l Cath. Educ. Ass’n, Data Brief: 20232024 Catholic School Enrollment,
https://perma.cc/G9FZ-U45X ................................. 21
Nat’l Cath. Educ. Ass’n, U.S. Catholic School
Data (2025), https://perma.cc/6PG9-297Y ............ 21
Page Forrest & Justin Theal, Strength of
State Rainy Day Funds Declines as
Budgets Tighten, Pew (Mar. 24, 2026),
https://perma.cc/ZN84-ZVK2 ................................. 26
Pope Benedict XVI, Deus Caritas Est (2005),
https://perma.cc/L4GS-GGS6 ................................ 20
Quentin Wodon, Catholic Higher Education
in the United States: Exploring the Decision
to Enroll from a Student’s (or a Student
Advisor’s) Point of View, 13 Religions
(Special Issue) 7 (2022) .......................................... 25
Ram A. Cnaan, Jill W. Sinha & Charlene C.
McGrew, Congregations as Social Service
Providers: Services, Capacity, Culture, and
Organizational Behavior 28 Admin. Soc.
Work 47 (2004). ...................................................... 24
viii
State Defendants’ Cross Motion for Partial
Summary Judgment, Colo. Congress of
Parents, Teachers and Students v. Owens,
No. 03-cv-3734 (Dist. Ct., Denv. City and
Cnty., Nov. 10, 2003) ............................................... 8
Stephen V. Monsma, Pluralism and
Freedom: Faith-Based Organizations In a
Democratic Society (2012). .............................. 19, 26
Thomas C. Berg, Progressive Arguments for
Religious Organizational Freedom:
Reflections on the HHS Mandate, 21 J.
Contemp. Legal Issues 279 (2013) ........................ 23
U.S. Catholic Higher Education Data, Ass’n
of Cath. Colls. & Univs.,
https://perma.cc/R5U3-JUXP ................................ 25
INTEREST OF AMICUS CURIAE
Amicus Curiae the United States Conference of
Catholic Bishops (“USCCB”) is a nonprofit religious
organization dedicated to promoting and carrying out
the Catholic faith in the United States and abroad.1
The USCCB’s members are the active Catholic
Bishops in the United States. The USCCB works
alongside the bishops of the Catholic Church to
support their ministries and pastoral calling in
diverse areas including the free expression of ideas,
religious liberty, and the protection of the rights of
parents and children.
USCCB has repeatedly advocated for the
enforcement of First Amendment principles that
prohibit governments from enacting laws that
disqualify religious observers and organizations from
generally available public benefits solely because of
their religious character or exercise. See Br. of Amicus
USCCB, et al., Carson v. Makin, No. 20-1088 (U.S.
Sept. 10, 2021); Br. of Amicus USCCB, et al., Espinoza
v. Mont. Dep’t of Revenue, No. 18-1195 (U.S. Sept. 18,
2019); Br. of Amicus USCCB, et al., Trinity Lutheran
Church of Columbia, Inc. v. Pauley, No. 15-577 (U.S.
Apr. 21, 2016). Yet the decision below upholds a
statute that, in practice, denies Catholic preschools
access to a state-run tuition assistance program solely
1 In accordance with Rule 37.6, no counsel for any party has
authored this brief in whole or in part, and no person or entity
other than the USCCB, its members, or its counsel made a
monetary contribution to the preparation or submission of this
brief.
(1)
2
because those schools adhere to Catholic doctrine
about gender and human sexuality. The USCCB has
a keen interest in correcting that decision.
SUMMARY OF ARGUMENT
The Tenth Circuit below misapplied Carson,
Espinoza, and Trinity Lutheran. Colorado has, by its
own admission, disqualified Catholic preschools from
participation in the State’s universal preschool
program solely because of their adherence to Catholic
doctrine. That violates this Court’s precedents, which
bar States from rebranding sincerely held religious
beliefs as “discrimination” in their efforts to impose a
different, state-preferred orthodoxy.
The government may not deny religious entities
the right to participate in an otherwise generally
available public program because of their religious
character or exercise. See Carson v. Makin, 596 U.S.
767, 778-80 (2022); Espinoza v. Mont. Dep’t of
Revenue, 591 U.S. 464, 475 (2020); Trinity Lutheran
Church of Columbia, Inc. v. Comer, 582 U.S. 449, 458
(2017). That is indisputably true when the stateadministered
program
discriminates
against
particular religious institutions—i.e., ones that act on
their sincerely held religious beliefs about gender and
human sexuality—but not others. See Carson, 596
U.S. at 787 (stating “[a]ny attempt to” distinguish
religious status from religious exercise “by
scrutinizing whether and how a religious school
pursues its educational mission would also raise
serious concerns about state entanglement with
religion and denominational favoritism.”). Nor can
3
“religious practice” be “singled out for discriminatory
treatment” through facially neutral “religious
gerrymanders.” Church of Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520, 534, 538 (1993) (citation
omitted).
The Tenth Circuit permitted exactly that kind of
religious gerrymander here. It reasoned that the
Colorado
law’s
apparent
facial
neutrality
distinguished it from the public programs at issue in
Carson, Espinoza, and Trinity Lutheran—each of
which, in the Tenth Circuit’s view, targeted religion
“explicit[ly]” not merely incidentally. Pet.App.21a. If
the Tenth Circuit’s reasoning suffices to evade those
precedents, the Free Exercise Clause would be
“reduced to a simple semantic exercise,” easily
circumvented by artful statutory drafting. Carson,
596 U.S. at 784 (citation omitted). Moreover, the
“First
Amendment
ensures
that
religious
organizations and persons [must be] given proper
protection as they seek to teach the principles that are
so fulfilling and so central to their lives and faiths.”
Obergefell v. Hodges, 576 U.S. 644, 679-80 (2015). This
Court should therefore reverse the decision below to
prevent Carson, Espinoza, and Trinity Lutheran from
becoming “essentially meaningless.” Carson, 596 U.S.
at 784.
If allowed to stand, the Tenth Circuit’s decision
will embolden other states and municipalities to
discriminate against religious adherents’ rights by
enacting ostensibly neutral statutes that discriminate
in fact. This case is just the latest example of a
4
disturbing trend—states and cities across the country
using nondiscrimination requirements to “covert[ly]
suppress[] particular religious beliefs.” Church of
Lukumi Babalu Aye, 508 U.S. at 534 (citation
omitted). For example, Maine has openly and
explicitly executed an end-run around this Court’s
decision in Carson. See St. Dominic Acad. v. Makin,
744 F. Supp. 3d 43 (D. Me. 2024) (finding no likelihood
of success in a challenge to Maine’s revived tuition
program, which now imposes a facially neutral
“nondiscrimination” requirement); see, e.g., Compl.
¶ 87, Crosspoint Church v. Makin, No. 1:23-cv-00146,
ECF 1 at 17 (D. Me. Mar. 27, 2023) (citing social media
post from then-speaker of the Maine House of
Representatives, explaining that Maine had updated
its guidelines in 2022 in response to the Carson
litigation to allow the State to continue discriminating
against schools that practice traditional Catholic
doctrine: “Sure did. Anticipated the ludicrous decision
from the far-right SCOTUS”).
If this trend continues, it will impair the ability of
Catholic organizations and other faith-based service
providers to partner with state and local governments
to serve the public. The resulting harm to the nation’s
social support infrastructure would be immense.
Catholic charitable organizations are a profound force
for good. They provide excellent education, heal the
sick, care for the vulnerable, and feed the hungry.
These and other faith-based organizations collectively
provide billions of dollars in services to those in need
every year. Reversal here—with a clear instruction to
courts across the country that religious organizations
5
cannot be barred from participation in public life
merely because they live out their sincerely held
religious beliefs—will ensure that these organizations
can continue providing vital, irreplaceable services in
partnership with the states while freely exercising
their faith.
ARGUMENT
I.
The Tenth Circuit’s decision should be
reversed because it misapplied Carson,
Espinoza, and Trinity Lutheran.
Under the Free Exercise Clause, the government
may not exclude religious entities from public
programs by adopting facially neutral requirements
that in practice discriminate against disfavored
faiths. This Court should reverse the Tenth Circuit’s
decision to the contrary.
A. The Tenth Circuit upheld a Colorado law that
bars Catholic preschools from receiving tuition
through the State’s universal preschool program
solely because those preschools adhere to Catholic
doctrine regarding human sexuality in their
admissions processes. But that law violates core Free
Exercise Clause principles this Court recognized in
Carson, Espinoza, and Trinity Lutheran.
The “Free Exercise Clause” protects “religious
observers against unequal treatment and against
laws that impose special disabilities on the basis of
religious status.” Espinoza, 591 U.S. at 475 (cleaned
up). This bars not only “outright prohibitions” on the
“free exercise of religion,” but also “indirect coercion
or penalties” on free exercise. Trinity Lutheran, 582
6
U.S. at 463 (cleaned up). Just as a state may not
“regulate or outlaw conduct because it is religiously
motivated,” it may not require religious schools to
“disavow [their] religious character” in order “to
participate in a government benefit program.” Id. at
461, 463. This Court has thus found it
“‘unremarkable’” that state laws that “disqualify[]
otherwise eligible recipients” from public funding
because of their religious exercise “trigger[] the most
exacting scrutiny.” Espinoza, 591 U.S. at 475 (quoting
Trinity Lutheran, 582 U.S. at 462). “[A] person may
not be compelled to choose between the exercise of a
First Amendment right and participation in an
otherwise available public program.” Thomas v. Rev.
Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 716 (1981).
A long history of state laws targeting people of
faith justifies this Court’s concern with enforcing free
exercise principles disallowing that type of
discrimination. Take, for example, state Blaine
Amendments, including Colorado’s. Those provisions
adopted in numerous state constitutions in the late
1800s and early 1900s were designed to suppress
Catholic schools in favor of Protestant-dominated
public schools. Coinciding with a failed attempt by
then-Senator James G. Blaine to amend the federal
constitution in 1875, a wave of “anti-sectarian” nofunding provisions crept into numerous state
constitutions. See Joseph P. Viteritti, Blaine’s Wake:
School Choice, the First Amendment, and State
Constitutional Law, 21 Harv. J.L. & Pub. Pol’y 657
(1998).
7
These state Blaine Amendments were a
reactionary attempt to “protect” the dominant
religious culture of mainstream Protestantism. They
sought to ensure both that public schools would teach
their brand of Christianity and also that private
religious schools—branded as “sectarian”—would not
receive state funding. To that discriminatory end,
since 1876, Colorado’s Constitution has prohibited
government from making any appropriation “in aid of
any church or sectarian society, or for any sectarian
purpose,” or to help any institution “controlled by any
church or sectarian denomination whatsoever.” Colo.
Const. art. IX, § 7 (emphases added). It also prohibits
government grants or donations “for any sectarian
purpose.” Id. (emphasis added). Similarly, Article IX,
section 8 prohibits the teaching of “sectarian tenets or
doctrines” in public schools. Colo. Const. art. IX, § 8
(emphasis added). At the time these provisions were
enacted,
“sectarian”
was
a
well-understood
euphemism for “Catholic”—in contrast to the
mainstream, “nonsectarian” Protestantism—and the
discriminatory intent of these amendments was clear.
See Donald W. Hensel, Religion and the Writing of the
Colorado Constitution, 30 Church History No. 3, 356
(1961) (“[R]eligious animosity” pervaded Colorado’s
1875-1876 constitutional convention—culminating in
bans on funding “parochial schools” and “sectarian”
teaching. These were the only two issues on which the
“convention refused to compromise contending
factions. The Protestant majority saw to that.”).
Notably, the State of Colorado has already
admitted elsewhere that Article IX section 7 was, like
8
other state Blaine Amendments, motivated by antiCatholic animus. See State Defendants’ Cross Motion
for Partial Summary Judgment, at 19 & n.18, Colo.
Congress of Parents, Teachers and Students v. Owens,
No. 03-cv-3734 (Dist. Ct., Denv. City and Cnty., Nov.
10, 2003). Despite this century and a half of antiCatholic discrimination in Colorado, Respondent
Dawn Odean, the director of Colorado’s universal
preschool program, testified at trial that she was “not
aware” that Catholics have been historically
discriminated against. Pet.App.363a. Colorado’s antiCatholic discriminatory policy here is thus rooted as
much in historical ignorance as it is in animosity to
faith-based views on gender, sexuality, and family.
Here, Colorado has excluded Catholic preschools
“from [a] generally available benefit solely because of
their religious character,” thus “penaliz[ing] the free
exercise of religion.” Carson, 596 U.S. at 780 (cleaned
up). Those preschools “adhere to Catholic faith,
morals, and the building up of Catholic culture within
the school.” Pet.App.11a (cleaned up). And they “hold
a sincere belief that Catholic teaching requires them
to consider the sexual orientation and gender identity
of a student and their parents before admitting them
to a Catholic School.” Id. (explaining the Archdiocese
that oversees the preschools “does not recognize samesex relationships or transgender status,” and so
“enrolling a child of same-sex parents in a Catholic
school is ‘likely to lead to intractable conflicts’”
(citation omitted)). Yet Colorado’s tuition program has
a “nondiscrimination requirement,” which prohibits
the preschools from considering in their admissions
9
processes the “sexual orientation[ or] gender identity”
of any “child or the child’s family.” Pet.App.6a. The
upshot is that these Catholic preschools, and the
parents who wish to enroll their children in them,
receive no tuition benefits solely because the
preschools adhere to Catholic teaching.
Carson, Espinoza, and Trinity Lutheran forbid
that result. A “State need not subsidize private
education,” but “once a State decides to do so, it cannot
disqualify some private schools solely because they
are religious.” Espinoza, 591 U.S. at 487. Nor may it
favor schools associated with “certain religions” or
“sects” over others because of the “theological lines”
they draw in their religious practice. Cath. Charities
Bureau, Inc. v. Wis. Lab. & Indus. Rev. Comm’n, 605
U.S. 238, 248-49 (2025).
B. The Tenth Circuit erroneously reached the
opposite conclusion. It held that because “the
nondiscrimination requirement . . . applies to all
preschools regardless of whether they are religious or
secular,” Colorado may exclude Catholic preschools.
Pet.App.21a.
If allowed to stand, that holding could render
Carson, Espinoza, and Trinity Lutheran “essentially
meaningless.” Carson, 596 U.S. at 784. To be sure, the
laws at issue in Carson, Espinoza, and Trinity
Lutheran “explicit[ly]” targeted religion. Pet.App.21a.
But the First Amendment also forbids the government
from indirectly discriminating against religion. See
Nat’l Rifle Ass’n v. Vullo, 602 U.S. 175, 190 (2024)
10
(“[A] government official cannot do indirectly what
she is barred from doing directly.”).
The Court has already held this in the Free
Exercise Clause context. “The Free Exercise Clause
protects against governmental hostility which is
masked, as well as overt.” Church of Lukumi Babalu
Aye, 508 U.S. at 534. The Constitution “forbids” both
“subtle departures from neutrality,” Gillette v. United
States, 401 U.S. 437, 452 (1971), and “covert
suppression of particular religious beliefs,” Bowen v.
Roy, 476 U.S. 693, 703 (1986). “[A] regulation neutral
on its face may, in its application, nonetheless offend
the constitutional requirement for governmental
neutrality if it unduly burdens the free exercise of
religion.” Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. at
717 (quoting Wisconsin v. Yoder, 406 U.S. 205, 220
(1972)). In Church of Lukumi Babalu Aye, for
instance, the discriminatory city ordinance was
facially neutral. But that was “not determinative”
because in “effect,” the ordinance accomplished “a
religious gerrymander.” 508 U.S. at 534-35 (cleaned
up). The “only conduct” that the ordinance would be
enforced against was “the religious exercise of
Santeria church members.” Id. at 535. That facially
neutral attempt “to suppress the conduct because of
its religious motivation” was unconstitutional. Id. at
538.
Governments may not circumvent Carson,
Espinoza, and Trinity Lutheran through this sort of
“religious gerrymander[],” either. Walz v. Tax Comm’n
of City of N.Y., 397 U.S. 664, 696 (1970) (Brennan, J.,
11
concurring). Although each of those cases involved
expressly discriminatory statutes, their reasoning
applies equally to laws that appear neutral but in fact
discriminate against religion.
Consider Carson. That case involved a tuitionassistance statute in Maine that imposed a
“requirement that any school receiving tuition
assistance payments must be ‘a nonsectarian school.’”
596 U.S. at 774 (citation omitted). The Court held that
facially discriminatory language triggered strict
scrutiny. Id. at 780-81. But Maine had argued (and
the court below had held) that the statute’s
requirement was properly viewed not as expressly
discriminatory, but as merely providing funding for
the “rough equivalent of [a] public school education
that Maine may permissibly require to be secular.” Id.
at 782 (citation omitted).
This Court rejected that reasoning as
incompatible with its “decision in Espinoza.” Id. at
784. It explained that “[b]y Maine’s logic,” the
Montana law at issue in Espinoza could have avoided
strict scrutiny “simply by redefining its tax credit for
sponsors of generally available scholarships as limited
to ‘tuition payments for the rough equivalent of a
Montana public education’—meaning a secular
education.” Id. at 785. That approach would have been
neutral on its face. But the effect would have been to
exclude religious schools “on the basis of their
religious exercise.” Id. at 789. That was impermissible
because the Court’s “holding in Espinoza turned on
the substance of free exercise protections, not on the
12
presence or absence of magic words” and it “applies
fully whether the prohibited discrimination is in an
express provision” like Maine’s statute or in a facially
neutral “reconceptualization of the public benefit.” Id.
at 785 (emphases added).
Trinity Lutheran confirms this, too. That case
involved a Missouri grant program, which had “a
strict and express policy of denying grants to any
applicant owned or controlled by a church, sect, or
other religious entity.” Trinity Lutheran, 582 U.S. at
455. The Court applied strict scrutiny to strike down
that program, relying on the “basic principle” that
“denying a generally available benefit solely on
account of religious identity imposes a penalty on the
free exercise of religion.” Id. at 458. Yet Trinity
Lutheran made clear that even “facial[ly] neutral[]”
laws could unconstitutionally “single out the religious
for disfavored treatment,” citing Church of Lukumi
Babalu Aye as an example. Id. at 460-61.
The Tenth Circuit below defied this clear
guidance. It distinguished Carson, Espinoza, and
Trinity Lutheran because Colorado’s law does not
overtly, facially discriminate against religion. But
Colorado’s law excludes Catholic preschools from
funding because of their religious exercise,
disqualifying them solely based on their religious
conduct—adherence to traditional religious beliefs
about human sexuality. Pet.App.6a, 11a. Colorado’s
law thus does exactly what this Court warned against
in Carson, “redefining” sincerely held religious
practice as discrimination and “exclud[ing] otherwise
13
eligible schools on the basis of their religious
exercise.” 596 U.S. at 785, 789. Colorado’s tuition
program excludes high-quality Catholic preschools
from a generally available tuition-assistance program
simply because those schools are putting into practice
foundational Catholic doctrines by “liv[ing] out their
faiths in daily life.” Kennedy v. Bremerton Sch. Dist.,
597 U.S. 507, 524 (2022). That violates the Free
Exercise Clause because that “Clause protects not
only the right to harbor religious beliefs inwardly and
secretly,” but also the right to live them outwardly and
publicly. Id. That right encompasses religious schools.
See Carson, 596 U.S. at 782.
Colorado has produced the same constitutional
defect identified in Carson: A gerrymandered
eligibility criterion that permits participation by some
religious actors but excludes others who hold beliefs
the State disfavors. Like Maine’s “rough equivalent
of . . . public education” argument, the Colorado
nondiscrimination mandate here is facially neutral
but operates to disqualify schools whose religious
exercise conflicts with the State’s preferred orthodoxy.
Carson, 596 U.S. at 785. Both rules have legitimate
secular targets but also target constitutionally
protected religious conduct. See id. Trinity Lutheran
and Espinoza make clear that religious entities
cannot be excluded from generally available public
programs based on religious status. Carson then
confirmed that this protection extends to religious
exercise, not merely inward belief. In Carson, that
exercise was teaching a Catholic curriculum. Here, it
is St. Mary’s implementation of an admissions process
14
consistent with its Catholic beliefs on human
sexuality for the ultimate purpose of facilitating an
environment where the school can teach its faith with
integrity. Carson’s logic prohibits the State from
conditioning participation in the universal preschool
program on the requirement that St. Mary abandon
its free exercise of religion.
Yet under the Tenth Circuit’s reasoning, any
state could “manipulate” the scope “of a particular
program” to implicitly exclude religious entities. Id. at
784 (citation omitted). That would “‘reduce[]’” the
“‘First Amendment’” to a “‘simple semantic exercise.’”
Id. (quoting Agency for Int’l Dev. v. All. for Open Soc’y
Int’l, Inc., 570 U.S. 205, 215 (2013)). This Court should
reverse to avoid that outcome.
II. The Tenth Circuit’s decision will greatly
harm those that rely on faith-based social
services, who are some of our society’s most
vulnerable.
If the Tenth Circuit’s decision stands, it will
embolden other states and cities to violate religious
adherents’ rights. This will leave communities across
the country worse off, because religious organizations
shoulder an outsized share of the burden of our
country’s social safety net. This is already happening.
Without this Court’s intervention, the resulting harm
will be immense.
15
A. Colorado is not alone in adopting
facially neutral laws that punish
religious exercise in practice.
The Colorado law at issue exemplifies a troubling
trend. States and municipalities across the country
are using facially neutral nondiscrimination
requirements to “covert[ly] suppress[] . . . particular
religious beliefs,” while avoiding public statements of
religious animus. Church of Lukumi Babalu Aye, 508
U.S. at 534 (citation omitted). This Court should stop
this trend in its tracks.
Colorado itself has repeatedly wielded facially
neutral nondiscrimination requirements to quash
faithful religious exercise. See, e.g., Masterpiece
Cakeshop, Ltd. v. Colo. C.R. Comm’n, 584 U.S. 617,
640 (2018); see also 303 Creative LLC v. Elenis, 600
U.S. 570, 602-03 (2023) (holding Colorado’s AntiDiscrimination Act violated Christian website
designer’s right not to speak a message with which
she disagreed). Yet those losses before this Court have
not deterred it from trying again here.2
Nor is Colorado alone. Maine has revived the
town-tuition program this Court struck down in
2 See, e.g., H.B. 26-1292, § 22-2.5-103(1)(a), 75th Gen. Assemb.,
2d Reg. Sess. (Colo. 2026) (proposed legislation that included a
“Nondiscrimination” provision requiring a “participating
[Colorado] school” that receives funds from a federally recognized
“scholarship granting organization” “shall not discriminate on
the basis of any student’s, student’s parent’s, or student’s family
member’s . . . sexual orientation, gender identity, gender
expression, [or] family composition[.]”).
16
Carson on purportedly neutral, antidiscrimination
terms. See St. Dominic Acad., 744 F. Supp. 3d 43 (D.
Me. 2024); Crosspoint Church v. Makin, 719 F. Supp.
3d 99 (D. Me. 2024). Now, if religious schools want to
accept public funding, they must admit students with
beliefs about “their sexual orientation, gender
identity, or religion” that conflict with the school’s
deeply held religious values. Crosspoint Church, 719
F. Supp. 3d at 117. Maine’s Speaker of the House
openly described the change as a direct response to
“the ludicrous decision from the far-right SCOTUS.”
Id. at 107 (citation omitted). And commentators have
held up this method as “a model for lawmakers” to
“outmaneuver the [Supreme C]ourt and avoid the
consequences of” the loss in Carson. Aaron Tang,
Opinion, There’s a Way to Outmaneuver the Supreme
Court, and Maine Has Found It, N.Y. TIMES (June 23,
2022), https://perma.cc/L36M-GKRT.
The list of examples goes on. New York City’s
Human Rights Law’s “public accommodations
provision” has been used to force a Jewish university
to recognize an LGBTQ group as an official student
organization, in violation of its sincerely held religious
values. YU Pride All. v. Yeshiva Univ., 180 N.Y.S.3d
141, 144-46 (N.Y. App. Div. 2022). The Washington
Supreme Court has interpreted the state’s
nondiscrimination law to require a Christian florist to
create arrangements celebrating a same-sex wedding
in violation of her sincerely held beliefs. State v.
Arlene’s Flowers, Inc., 441 P.3d 1203 (Wash. 2019).
And, as this Court well knows, Philadelphia
attempted to exclude Catholic foster care agencies
17
from serving the city because of their religious beliefs.
Fulton v. City of Phila., 593 U.S. 522, 530-31 (2021).
Congress’s recent enactment of a federal
scholarship tax credit has prompted its own wave of
discrimination against religious schools. Passed as
part of the One Big Beautiful Bill Act (H.R. 1), the
Educational Choice for Children Act (“ECCA”) allows
taxpayers to deduct from their federal tax bill
donations made to eligible Scholarship Granting
Organizations (“SGOs”). Those organizations in turn
provide scholarships to individual students, who can
use the money at public or private schools. But some
states are attempting to interfere in this process in
order to exclude certain religious schools. Vermont
recently enacted a law that would bar an otherwise
eligible private school from receiving funds from an
SGO unless the school signs a “memorandum of
understanding” stating that it “does not discriminate
against any student” because of “sex, sexual
orientation, [or] gender identity.” Act 164, § 19, 2026
Vt. Acts & Resolves 18 (to be codified at 3 Vt. Stat.
Ann. § 24(b)(5), (c)(3)). Virginia has pending
legislation that would likewise bar a private school
from receiving funds from SGOs unless it “publicly
state[s] on its website, in enrollment materials, and in
any promotional literature, that it admits students
without regard to,” among other characteristics, “sex,
sexual orientation, gender identity or expression,” and
that it “will affirm the identities of all students while
providing appropriate accommodations.” H.B. 359,
§ 22.1-101.6(A)-(B), 2026 Gen. Assemb., Reg. Sess.
(Va. 2026). Lawmakers in Kentucky have similarly
18
tried to prohibit private schools that adhere to
traditional beliefs about human sexuality and gender
from receiving funds from SGOs. See H.B. 1, Gen.
Assemb., Reg. Sess., Proposed Amends. 2 & 3 (Ky.
2026) (conditioning ability to use scholarships at
private schools based upon those schools agreeing “not
[to] discriminate based on . . . sexual orientation[] or
gender identity.”). In North Carolina, Governor
Stein’s recent budget proposal would accomplish
similar discrimination. See S.B. 915, § 115C562.5(c1)(3), 2026 Gen. Assemb., Reg. Sess., Edition 1
(N.C. 2026) (“A nonpublic school shall not
discriminate with respect to: . . . sexual orientation.”).
This trend is corrosive. As these examples
demonstrate, state and local governments often use
generally applicable nondiscrimination laws not to
root out invidious discrimination, but to “prescribe
what shall be orthodox” in “matters of opinion,”
including religious doctrine. W. Va. State Bd. of Educ.
v. Barnette, 319 U.S. 624, 642 (1943). This case proves
the point. Colorado admits it has never received a
single complaint about discrimination at a Catholic
preschool. Pet.App.141a. That lack of discrimination
is because nothing in the universal tuition program
requires families who disagree with the Catholic
Church’s views to send their children to St. Mary.
Same-sex families are free to use the tuition program
funds at any school they wish. Barring St. Mary from
the universal preschool program thus forecloses
access to a school with decades of successful
performance for many parents seeking preschool
education for their families and provides Denver
19
residents nothing in return. Nothing—except sending
the unconstitutional message that Colorado
condemns St. Mary’s sincerely held religious views
about sexuality, marriage, and the family.
B. If Catholic service organizations are
driven from the public square, the harm
to communities most in need would be
immense.
If the trend the Tenth Circuit endorsed continues
unchecked, it will deny Catholic organizations and
other faith-based service providers access to the funds
necessary to provide services to the public. And if that
happens, “a major portion of the nation’s social safety
net of human services would be lost.”3
1.
Religious
organizations—and
Catholic
organizations in particular—are a cornerstone in
America’s social infrastructure and a profound force
for good. But antagonistic State governments—like
Colorado—are actively chasing certain, disfavored
religious entities from the nation’s shelters, schools,
and hospitals. If that conduct is permitted to continue,
it is not hyperbole to say that the consequences to the
social safety net will be devastating. The numbers
bear this out. For example, “across a sample of six
cities, which vary in size and demographics,” research
3 Stephen V. Monsma, Pluralism and Freedom: Faith-Based
Organizations In a Democratic Society 16 (2012).
20
has shown that “faith-inspired organizations account
for 40 percent of social safety net spending.”4
Catholic institutions rank among the largest and
most essential providers of human services both
globally and in the United States. As Pope Benedict
XVI wrote, “The Church cannot neglect the service of
charity any more than she can neglect the Sacraments
and the Word.”5 In 2024, Catholic Relief Services
served 198 million people in 134 countries on an
annual operating revenue of roughly $1.3 billion.6
That same year, Catholic Charities USA, the national
membership organization for Catholic Charities
across the country, served millions domestically.7
Specifically, the 168 agencies that make up the
Catholic Charities network worked in 4,700 parishes
across the country and served more than 28 million
meals to hungry men, women and children; provided
emergency housing services to more than 295,000
people; provided 526,000 people with behavioral
health and wellness services; provided 2.8 million
4 Jeri Eckhart Queenan, et al., Elevating the Role of Faith-
Inspired Impact in the Social Sector, The Bridgespan Grp., 2
(Jan. 2021), https://perma.cc/BH87-7JEK.
Pope Benedict XVI, Deus Caritas Est ¶ 22 (2005),
https://perma.cc/L4GS-GGS6.
5
Cath. Relief Servs., 2024 Annual Report 4, 22 (2025),
https://perma.cc/RD3W-5GQC.
6
Cath. Charities USA, Pathways Forward: 2024 Annual
Report 6, https://perma.cc/PFY3-JZSY.
7
21
nights of shelter; and responded to 52 natural and
manmade disasters.8
Specific to education, Catholic schools enroll
millions of students every year. For example, in the
2023-2024 school year, more than 1.69 million
students enrolled in 5,905 Catholic schools across the
country, with 38.7% of those schools in urban and
inner-city locations.9 Those students score higher in
math and reading on the National Assessment of
Educational Progress scale than public school
students.10 They also graduate at a high rate: For the
2021-2022 school year, Catholic high schools had a
graduation rate of 98%,11 eleven percent higher than
the national average of 87%.12
Catholic charitable organizations heal the sick
and care for the suffering. Catholic hospitals across
the country help millions of patients each year.
“Comprised of more than 600 hospitals and 1,600
long-term care and other health facilities in all 50
states,” the Catholic Health Association, for example,
“is the largest group of nonprofit health care providers
8 Id. at 18-19.
Nat’l Cath. Educ. Ass’n, Data Brief: 2023-2024 Catholic
School Enrollment 1-2, https://perma.cc/G9FZ-U45X.
9
10 Nat’l Cath. Educ. Ass’n, U.S. Catholic School Data (2025),
https://perma.cc/6PG9-297Y (click “Download the 2024-2025
Infographic”).
11 2021–2022 Highlights, NCEA, https://perma.cc/6Z2M-ZRX7.
High School Graduation Rates, Inst. of Educ. Scis. (May
2024), https://perma.cc/T2WN-Z6EF.
12
22
in the nation. Every day, more than one in seven
patients in the U.S. is cared for in a Catholic
hospital.”13 That includes nearly 19 million
emergency room visitors and nearly 99 million
outpatient visitors.14
Religious organizations are at the forefront of
both care and recovery for the nation’s homeless
population, too. “A 2017 study found that 58 percent
of the emergency shelter beds in 11 surveyed cities are
maintained by religious providers—who also
delivered many of the addiction, health-care,
education, and job services needed to help the
homeless regain their independence.”15 That study
found that “[l]ocal congregations provide 130,000
alcohol-recovery programs,” “120,000 programs that
assist the unemployed,” and “26,000 programs to help
people living with HIV/AIDS—one ministry for every
46 people infected with the virus.”16
Catholic foster care and adoption organizations
care for children in need, placing thousands of
children in permanent homes, especially “hard-to-
13 Catholic Health Association of the United States, About Us:
Facts & Statistics (June 2026), https://perma.cc/D76U-M8GB.
14 Catholic Health Care in the United States, CHA (Apr. 2025),
https://perma.cc/4XPE-L565.
Karl Zinsmeister, Less God, Less Giving?: Religion and
Generosity Feed Each Other in Fascinating Ways, PHILANTHROPY
(Winter 2019), https://perma.cc/UCQ7-X8JY.
15
16 Id.
23
place children with special needs.”17 In 2017, Catholic
Social Services in Philadelphia served “more than 120
children in foster care,” “supervise[d] around 100
different foster homes,” and “served more than 2,200
different at-risk children.” Compl. ¶ 3, Fulton v. City
of Phila., 2018 WL 11376235 (E.D. Pa. May 16, 2018).
Without these Catholic organizations, there
would be major gaps in social services. For example,
in New York alone, the organization Catholic
Charities provides over 10 million meals and serves
over 99,000 children every year by providing day care,
foster care, after-school activities, and preventative
services.18 The agency provides emergency shelter,
counseling, financial aid, and aid for the mentally ill,
refugees, immigrants, those with special needs, and
those with disabilities.19
2. The economic burden of replacing faith-based
human services with alternative providers would be
almost “incalculably large.”20
Using
conservative
figures,
faith-based
organizations provide billions of dollars in services to
Thomas C. Berg, Progressive Arguments for Religious
Organizational Freedom: Reflections on the HHS Mandate, 21 J.
Contemp. Legal Issues 279, 313 (2013).
17
18 Cath. Charities, Archdiocese of N.Y., 2023 Annual Report:
Charity in Action 4, https://perma.cc/GF2U-TLLH.
19 Id. at 2, 4-5.
Brian J. Grim & Melissa E. Grim, The Socio-economic
Contribution of Religion to American Society: An Empirical
Analysis, 12 Interdisc. J. Rsch. on Religion 2, 26 (2016).
20
24
those in need every year. For example, congregationbased substance abuse recovery programs “contribute
up to $316.6 billion in savings to the US economy”
annually.21 At the local level, the impact of faith-based
organizations is also indispensable. A study of
religious congregations in the Philadelphia area, for
example, found that they provided, collectively, a
quarter of a billion dollars in social services.22 At that
time, Philadelphia spent approximately $523 million
a year on social services.23 So roughly “one third of the
[annual] cost to maintain quality of life in
Philadelphia is voluntarily provided by local religious
congregations.”24 A similar study in Michigan
calculated that the annual replacement value of
human services provided by local congregations was
$95 to $118 million.25
Further, a February 2025 study conducted by
researchers from the University of Colorado on the
economic impact of the Catholic Church in Minnesota
Brian J. Grim & Melissa E. Grim, Belief, Behavior, and
Belonging: How Faith Is Indispensable in Preventing and
Recovering from Substance Abuse, 58 J. Religion & Health 1713,
1737 (2019).
21
Ram A. Cnaan, Jill W. Sinha & Charlene C. McGrew,
Congregations as Social Service Providers: Services, Capacity,
Culture, and Organizational Behavior, 28 Admin. Soc. Work 47,
55 (2004).
22
23 Id.
24 Id.
Edwin I. Hernández et al., Gatherings of Hope: How
Religious Congregations Contribute to the Quality of Life in Kent
County 61 (Nov. 2008), https://perma.cc/D7YC-EZT9.
25
25
found that the “total economic value of Catholic
programs” in the state “is estimated at $5.4 billion.”26
The study explains that healthcare institutions run by
or affiliated with the Church generate $3.2 billion,
Catholic schooling contributes $1.4 billion, and church
events generate $56 million, to name just a few
economic effects of the Catholic Church in the State.27
Catholic colleges and universities across the
country make a similar impact. In the fall of 2023,
Catholic colleges and universities enrolled 675,000
students in 230 institutions of higher learning.28
About 84% of students at Catholic institutions receive
some form of financial aid, averaging almost $24,000
per student in 2022-2023.29 And graduates of these
Catholic institutions have lower student-debt default
rates than the national average.30
Anna Faria & Grant Clayton, Fruits of the Vine: The
Economic Impact of the Catholic Church in Minnesota 5 (Feb.
2025), https://perma.cc/LTD3-4Y8H.
26
27 Id. at 6.
28 U.S. Catholic Higher Education Data, Ass’n of Cath. Colls.
& Univs., https://perma.cc/R5U3-JUXP (under “Catholic Higher
Education FAQs,” click “How many Catholic colleges are in the
United States?” and “How many students are enrolled?”).
29 Id. (under “Catholic Higher Education FAQs,” click “How
much financial aid do students at Catholic institutions typically
receive?”).
30 Quentin Wodon, Catholic Higher Education in the United
States: Exploring the Decision to Enroll from a Student’s (or a
Student Advisor’s) Point of View, 13 Religions (Special Issue) 7
(2022).
26
In short, the exclusion of faith-based charities
from public programs both violates the First
Amendment and inflicts “major public policy
consequences.”31 Faith-based funds cannot be easily
replaced. Forty-six states and the District of Columbia
have balanced-budget requirements.32 And “[a]fter
years of record highs, states’ rainy day fund
capacity—the number of days that reserve balances
could cover state operations—fell in fiscal year 2025,
the first decline since the 2007-09 Great Recession.”33
So if state legislators bar the billions of dollars that
Catholic and other faith-based organizations
contribute, there is no mechanism to make up the
difference. State legislators in Denver may not suffer,
but the poor, the sick, and the downtrodden who rely
on faith-based services certainly will. As a result, our
most destitute citizens “would go without needed
services and private secular agencies and
government—which is already under pressure to cut
back on its services to those in need—would have to
scramble in an effort to find some way to make up for
the major gaps now created.”34 This Court should
31 Monsma, supra note 3, at 16.
Kim S. Rueben & Megan Randall, Balanced Budget
Requirements: How States Limit Deficit Spending (Nov. 27,
2017), https://perma.cc/85NR-N3UA.
32
33 Page Forrest & Justin Theal, Strength of State Rainy Day
Funds Declines as Budgets Tighten, Pew (Mar. 24, 2026),
https://perma.cc/ZN84-ZVK2.
34 Id.
27
reverse the Tenth Circuit’s misguided decision to
ensure that does not happen.
CONCLUSION
The judgment of the court of appeals should be
reversed.
Respectfully submitted,
STEVEN P. LEHOTSKY
Counsel of Record
JONATHAN E. DEWITT
LEHOTSKY COHN LLP
200 Massachusetts Ave. NW
Suite 700
Washington, DC 20001
(512) 693-8350
steve@lehotskycohn.com
DANIELLE K. GOLDSTEIN
LEHOTSKY COHN LLP
3280 Peachtree Road NE
Atlanta, GA 30305
MARK M. ROTHROCK
LEHOTSKY COHN LLP
8513 Caldbeck Drive
Raleigh, NC 27615
Counsel for Amicus Curiae
JULY 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.