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

No. 25-581

444444444444444444444444444444444444444444

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 Amicus Curiae of

America’s Future, Public Advocate of the

United States, Public Advocate Foundation,

U.S. Constitutional Rights Legal Defense Fund,

and Conservative Legal Defense and

Education Fund in Support of Petitioners

____________________

RICK BOYER

INTEGRITY LAW FIRM

P.O. Box 10953

Lynchburg, VA 24506

WILLIAM J. OLSON*

JEREMIAH L. MORGAN

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

Attorneys for Amici Curiae (703) 356-5070

wjo@mindspring.com

*Counsel of Record

July 2, 2026

444444444444444444444444444444444444444444

TABLE OF CONTENTS

Page

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

INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 1

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

ARGUMENT

I.

COLORADO’S EXCLUSIONS FROM THE

UNIVERSAL PRESCHOOL PROGRAM VIOLATE

THE TEXT, HISTORY, AND TRADITION OF THE

FIRST AMENDMENT . . . . . . . . . . . . . . . . . . . . . . 6

A.

Carson Demonstrates the Confusion

and Failure Produced by Atextual

“Balancing” Tests . . . . . . . . . . . . . . . . . . . 6

B.

The Decisions of the Courts Below

Were Replete with Balancing . . . . . . . . . 7

C.

Chief Justice Roberts Explained that

Interest Balancing Is Never

Constitutionally Required . . . . . . . . . . . . 9

D.

In Other Constitutional Contexts since

Heller, this Court Has Rightly

Rejected Balancing Tests for Some

Version of “Text, History and

Tradition” . . . . . . . . . . . . . . . . . . . . . . . . 12

ii

E.

II.

N.Y. State Rifle & Pistol Ass’n v.

Bruen and Beyond . . . . . . . . . . . . . . . . . 16

THE COURTS BELOW HAVE CREATED A

ROADMAP TO USE THE SMITH TEST TO

STIFLE THE FREE EXERCISE OF DISFAVORED

RELIGIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

A.

The District Court Opinion Sanctioned

Discrimination against Traditional

Biblical Christianity. . . . . . . . . . . . . . . . 19

B.

The Tenth Circuit Decision Exhibited

Somewhat Different Flaws . . . . . . . . . . 21

III. REYNOLDS V. UNITED STATES PROVIDES A

“TEXT AND HISTORY” MODEL THIS COURT

SHOULD FOLLOW TO RETURN TO THE

ORIGINAL MEANING OF THE FREE EXERCISE

CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

IV. VIEWED IN THE LIGHT OF THE TEXT AND

HISTORY OF THE FREE EXERCISE CLAUSE,

COLORADO’S UPK RESTRICTION ON CERTAIN

RELIGIOUS SCHOOLS CANNOT STAND . . . . . . . 30

V.

THE UPK RESTRICTION AGAINST CERTAIN

RELIGIOUS SCHOOLS ALSO VIOLATES THE

ESTABLISHMENT CLAUSE. . . . . . . . . . . . . . . . . 33

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

iii

TABLE OF AUTHORITIES

Page

CONSTITUTION

Amendment I . . . . . . . . . . . . 2, 4, 6-10, 12, 13, 15-18,

24, 27-31, 33, 34

Amendment II . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Amendment XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Constitution of Virginia, Art. I, Sec. 16 . . . . . . . . 27

CASES

Bowers v. Hardwick, 478 U.S. 186 (1986) . . . . 30, 31

Carson v. Makin, 596 U.S. 767 (2022). . . . . . . 2, 4, 6

Church of Lukumi Babalu Aye v. City of Hialeah,

508 U.S. 520 (1993) . . . . . . . . . . . . . . . . . . . . . . 34

District of Columbia v. Heller, 554 U.S. 570

(2008) . . . . . . . . . . . . . . . . . . . . . . 5, 7, 9-12, 16, 24

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) . . . . . . . . . . . . . . . . . . . . 14-16

Employment Division v. Smith, 494 U.S. 872

(1990) . . . . . . . . . . . . . . . . . . . . . . 2, 4, 5, 18-20, 23

Everson v. Bd. of Educ., 330 U.S. 1 (1947) . . . . . . 33

Fulton v. City of Philadelphia, Pennsylvania,

593 U.S. 522 (2021) . . . . . . . . . . . . . . . . . . . 20, 22

Gibbons v. Ogden, 22 U.S. 1 (1824) . . . . . . . . . . . . 17

Giles v. California, 554 U.S. 353 (2008) . . . . . . . . 12

Kennedy v. Bremerton School District,

597 U.S. 507 (2022) . . . . . . . . . . . . . . . . . . . 13, 14

Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . 31, 32

Lemon v. Kurtzman, 403 U.S. 602 (1971) . . . . 12, 13

Mahmoud v. Taylor, 606 U.S. 522 (2025) . . . . . . . 32

Marbury v. Madison, 5 U.S. 137 (1803) . . . . . . . . 17

Masterpiece Cakeshop v. Colorado C.R. Comm’n,

584 U.S. 617 (2018) . . . . . . . . . . . . . . . . . 19-21, 23

iv

McCreary County v. ACLU, 545 U.S. 844

(2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 34

Nat’l Republican Senatorial Comm. v. FEC,

2026 U.S. LEXIS 2886 (June 30, 2026) . . . . . . 15

N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S.

1 (2022) . . . . . . . . . . . . . . . . . 5, 12, 16, 24, 30, 32

Obergefell v. Hodges, 576 U.S. 644 (2015). . . . 18, 19

Reynolds v. United States, 98 U.S. 145

(1879) . . . . . . . . . . . . . . . . . . . . 5, 24, 26-28, 30, 34

Torcaso v. Watkins, 367 U.S. 488 (1961) . . . . . . . . 24

Town of Greece v. Galloway, 572 U.S. 565 (2014). 13

Trump v. CASA, Inc., 606 U.S. 831 (2025) . . . . . . 17

Welsh v. United States, 398 U.S. 333 (1970) . . . . . 33

MISCELLANEOUS

Francis Hirst, Life and Letters of Thomas

Jefferson (MacMillan Co. 1926) . . . . . . . . . . . . 29

Thomas Jefferson, The Jeffersonian Cyclopedia:

A Comprehensive Collection of the Views of

Thomas Jefferson, J. Foley, ed. (Funk &

Wagnalls: 1900). . . . . . . . . . . . . . . . . . . . . . 26, 27

Milwaukee Public Library, “First in the Nation Wisconsin’s Gay Rights Law,” MPL.org

(June 18, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . 31

Jeffrey Tuomala, “Is Tax-Funded Education

Unconstitutional?” 18 LIBERTY U. L. REV.

1009 (Mar. 2024) . . . . . . . . . . . . . . . . . . . . . . . . 29

The Writings of James Madison, G. Hunt, ed.

(G.P. Putnam’s Sons: 1901) . . . . . . . . . . . . 25, 26

INTEREST OF THE AMICI CURIAE1

Amici curiae America’s Future, Public Advocate of

the United States, Public Advocate Foundation, U.S.

Constitutional Rights Legal Defense Fund, and

Conservative Legal Defense and Education Fund are

nonprofit organizations, exempt from federal income

tax under either section 501(c)(3) or 501(c)(4) of the

Internal Revenue Code. These entities participate in

the public policy process, including conducting

research, and informing and educating the public on

the proper construction of state and federal

constitutions, as well as statutes related to the rights

of citizens, and questions related to human and civil

rights secured by law. Amicus America’s Future filed

an amicus brief in support of the Petition for Certiorari

in this case.

STATEMENT OF THE CASE

In the 2023-2024 school year, Colorado

implemented its “Universal Preschool Program”

(“UPK”), which “provides at least 15 hours of free

preschool per week for each eligible child in the state,”

and requires all participating preschools to “provide

eligible children an equal opportunity to enroll and

receive services regardless of race, ethnicity, religious

affiliation, sexual orientation, gender identity, lack of

housing, income level, or disability.” St. Mary Cath.

1

It is hereby certified that no counsel for a party authored this

brief in whole or in part; and that no person other than these

amici curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

2

Par. in Littleton v. Roy, 736 F. Supp. 3d 956, 963 (D.

Colo. 2024) (“St. Mary I”).

The program was challenged on Free Exercise,

Free Speech, and Establishment Clause grounds by

two Catholic schools and parents barred from

participation based on their rules requiring

participating families to sign their agreement with

Catholic teachings that marriage is limited to

monogamous heterosexual relationships, and that

there are only two sexes, male and female, that are not

interchangeable. Id. at 974-75. Pursuant to that

policy, in 2023, “Wellspring Catholic Academy declined

to enroll a fifth grader with same-sex parents.” Id. at

975.

Petitioners relied on this Court’s decision in

Carson v. Makin, 596 U.S. 767, 778 (2022), which

declared unconstitutional a similar Maine UPK that

explicitly reserved public funds to “nonsectarian”

schools, ruling that the Free Exercise Clause “protects

against ‘indirect coercion or penalties on the free

exercise of religion.’” Id. at 778. Nonetheless, the

district court for the District of Colorado dismissed the

schools’ free exercise claim, relying on this Court’s

decision in Employment Division v. Smith, 494 U.S.

872 (1990).

There, this Court stated that “if

prohibiting the exercise of religion ... is not the object

... but merely the incidental effect of a generally

applicable and otherwise valid provision, the First

Amendment has not been offended.” Id. at 878.

The district court believed Carson only required

that government could not target religious entities for

3

unfavorable treatment “‘solely because of’ their

religious character.” St. Mary I at 989. It then

concluded that the Colorado law was “neutral” because

it “appl[ied] the equal-opportunity requirement ‘in

spite of’ Plaintiffs’ religious beliefs, not because of

them.” Id. at 993. Since the requirement applied to

all preschools, the court found it both “generally

applicable” and “rationally related” to a legitimate

government interest of preventing “discrimination.”

Id. at 1003.

The Tenth Circuit affirmed. St. Mary Cath. Par. in

Littleton v. Roy, 154 F.4th 752 (10th Cir. 2025) (“St.

Mary II”). Like the district court, the Tenth Circuit

discarded “the Carson line of cases” as addressing only

“laws that targeted ‘religious status’ and ‘religious use’

on the explicit basis that they were religious and not

secular.” Id. at 764. The Tenth Circuit ruled that the

Colorado law revealed no “general undercurrent of

animus” against religion, and that because Colorado

“has not restricted certain practices ‘because of their

religious nature,’” the state had “demonstrated the

law’s neutrality.” Id. at 768. The court then ruled

that because “[n]o preschool participating in UPK is

allowed to take sexual orientation or gender identity

into account when making admissions decisions, for

any reason,” the law was generally applicable. Id. at

775.

SUMMARY OF ARGUMENT

Colorado’s Universal Preschool Program was

designed to allow both religious and secular preschools

eligible to participate — but only if those applicants

4

reject traditional Biblical morality and embrace the

“sexual orientation” and “gender identity” religious

doctrines favored by the State. Religious preschools

which adhere to traditional Biblical morality are thus

excluded, while religious preschools which are willing

to abandon traditional Biblical morality are eligible.

Such state preferences can be seen to violate both

establishment clause and free exercise principles.

The courts below relied on Employment Division v.

Smith, arguing that the Colorado law applies a

generally applicable rule with only incidental adverse

effect on some schools, parents, and children. They

asserted that Colorado’s allowing religious preschools

to participate demonstrates that the law is neutral

toward religion. However, by excluding applicants

who refuse to embrace the state’s inherently religious

view of “sexual orientation” and “gender identity,”

Colorado is discriminating based on religious doctrine,

which also interferes with the free exercise thereof.

The courts below viewed Carson narrowly, as requiring

only that government not target religious entities for

unfavorable treatment “‘solely because of’ their

religious character.” Language in the Carson case was

used by both courts below to justify use of an atextual

interest balancing test by which indirect targeting of

Biblical Christianity was deemed permissible, without

regard to the original public meaning of the Free

Exercise clause. It is time for this Court to make clear

that “interest balancing” can never empower judges to

disregard the original public meaning of the

Constitution.

5

Colorado’s handling of both exemptions and

preferences in administering its program further

evidences that Colorado is picking winners and losers

based on the religious doctrine of the applicant. A

preschool for only LGBTQ children is acceptable, but

not a preschool which rejects the notion of “gender

identity,” especially for toddlers and young children

well before puberty.

The view most consistent with the religion clauses

is that the early years of education are inherently

intertwined with religion, and thus outside the

jurisdiction of the state. However, if government is to

fund such early and primary education, it cannot do so

by excluding those who embrace Biblical Christianity.

The problems that have arisen from the

application of Employment Division v. Smith should be

confronted by this Court. The far better approach is to

adopt the text, history, and tradition approach to

understanding the provisions in the Bill of Rights, as

used recently in District of Columbia v. Heller, 554

U.S. 570 (2008), and N.Y. State Rifle & Pistol Ass’n v.

Bruen, 597 U.S. 1 (2022). Applied here, that would

require the Court to address the meaning of the term

“religion” as it did in Reynolds v. United States, 98

U.S. 145 (1879). The Court would then find there are

no relevant historical analogues for discrimination

against Biblical Christianity.

6

ARGUMENT

I.

COLORADO’S EXCLUSIONS FROM THE

UNIVERSAL PRESCHOOL PROGRAM

VIOLATE THE TEXT, HISTORY, AND

TRADITION OF THE FIRST AMENDMENT.

A. Carson Demonstrates the Confusion and

Fail u r e P r o d u c e d b y A t ext u al

“Balancing” Tests.

In challenging the Colorado UPK law below,

Petitioners invoked Carson v. Makin, 596 U.S. 767,

778 (2022). See Petitioners’ discussion of their reliance

on Carson below in Petitioners’ Brief at 15-16. In

Carson, this Court ruled that the Maine UPK program

that allowed only “nonsectarian” schools to participate

violated the Free Exercise Clause which “protects

against ‘indirect coercion or penalties on the free

exercise of religion.’” Carson at 778. In reaching that

conclusion, this Court based its opinion on history and

tradition, examining whether there was an “historic

and substantial” tradition.”

Carson at 788

(emphasis added). However, in that decision, this

Court also noted that a law that would “‘disqualify

some private schools’ from public funding ‘solely

because they are religious’ ... must be subjected to ‘the

strictest scrutiny.’” Id. at 780 (emphasis added).

These amici believe that by focusing on text,

history, and tradition, this Court used the correct

methodology in Carson, but then introduced

unnecessary confusion by invoking strict scrutiny. As

demonstrated by the opinions below, this Court’s

7

continuing use of interest balancing empowers the

lower courts to substitute their own judgment to evade

the “text, history and tradition” of the free exercise

clause. Thus, these amici urge this Court to decide the

present case without any reliance on or invocation of

what Justice Scalia described as a “judge-empowering

‘interest-balancing inquiry.’” District of Columbia v.

Heller, 554 U.S. 570, 634 (2008). To avoid cases such

as this continuing to come to this Court, lower court

judges should not be empowered with the tool of

interest-balancing to evade the original public

meaning of the Constitution.

B. The Decisions of the Courts Below Were

Replete with Balancing.

The district court clearly considered its job was to

apply an interest balancing test:

“[A] law that is neutral and of general

applicability need not be justified by a

compelling governmental interest even if the

law has the incidental effect of burdening a

particular religious practice.” ... In contrast,

as the Court in Lukumi instructed, a law that

is not neutral or generally applicable must

pass strict scrutiny, meaning it “must be

justified by a compelling governmental

interest and must be narrowly tailored to

advance that interest.” [St. Mary I at 987

(internal citation omitted).]

The district court conclusion was pure interest

balancing:

8

Because I find that the first State interest

Defendants identify — ensuring eligible

children and their families do not face

discriminatory barriers — is compelling and

that Defendants’ conduct was narrowly

tailored in pursuit of that interest, I do not

assess whether the second State interest —

protecting children from discrimination —

likewise satisfies strict scrutiny. [Id. at 1005.]

The Circuit Court affirmed based on a balancing

approach, without consideration of the text, history, or

tradition of the free exercise clause.

If a law is neutral and generally applicable, it

“need only be rationally related to a legitimate

governmental interest to survive a

constitutional challenge.”

Grace United

Methodist Church v. City of Cheyenne, 451

F.3d 643, 649 (10th Cir. 2006). “On the other

hand, if a law that burdens a religious practice

is not neutral or generally applicable, it is

subject to strict scrutiny,” and must be

“narrowly tailored to advance a compelling

governmental interest.” Id. Which is to say,

the neutrality and general applicability

inquiry guides the standard of judicial review

to determine whether the law violates the

Constitution. [St. Mary II at 765.]

Reliance on interest balancing allowed the lower

courts to reach the decision they preferred, rather than

the original public meaning of the clause, and both

9

courts decided that balance against the free exercise of

religion.

C. Chief Justice Roberts Explained that

Interest Balancing Is Never

Constitutionally Required.

During oral argument in Heller, Chief Justice

Roberts posed an insightful question with respect to

how the Court should understand the scope of the

Second Amendment — a question which these amici

believe has equal application to searching out the

scope of the free exercise clause:

[T]hese various phrases under the different

standards that are proposed, “compelling

interest,” “significant interest,” “narrowly

tailored,” none of them appear in the

Constitution; and I wonder why in this case

we have to articulate an all-encompassing

standard.2

The Chief Justice offered his own answer to that

question when he proposed that balancing tests should

be jettisoned in deciding Heller, in favor of a search for

the original public meaning of the Second Amendment:

Isn’t it enough to determine the scope of the

existing right that the amendment refers to,

look at the various regulations that were

2

Statement of Roberts, C.J., Tr. of Oral Arg., District of Columbia

v. Heller, No. 07-290, at 44, ll. 5-10 (Mar. 18, 2008) (emphasis

added).

10

available at the time, including you can’t

take the gun to the marketplace and all that,

and determine how these — how this

restriction and the scope of this right looks in

relation to those?3

In wrapping up, the Chief Justice rightly described

how the interest balancing “standards that apply to

the First Amendment just kind of developed over the

years as sort of baggage that the First Amendment

picked up.”4

These amici believe that this case presents an

excellent opportunity for this Court to jettison the

atextual “baggage” of interest balancing in

determining the scope of the Free Exercise Clause.

These amici urge this Court to employ the same

approach adopted in Heller for the Second Amendment

— a search for the text, context, history, and tradition

of the First Amendment and its protection of the free

exercise of religion. Justice Scalia’s opinion for the

Court followed the suggestion of the Chief Justice, that

there was no interest balancing to be done by the lower

courts:

We know of no other enumerated

constitutional right whose core protection has

been subjected to a freestanding

“interest-balancing” approach.

The very

enumeration of the right takes out of the

3

Id. at 44, ll. 10-16 (emphasis added).

4

Id. at 44, ll. 18-21 (emphasis added).

11

hands of government — even the Third Branch

of Government — the power to decide on a

case-by-case basis whether the right is really

worth insisting upon. A constitutional

guarantee subject to future judges’

assessments of its usefulness is no

constitutional guarantee at all.

Constitutional rights are enshrined with the

scope they were understood to have when the

people adopted them, whether or not future

legislatures or (yes) even future judges think

that scope too broad. [Heller at 634-35

(bolding added).]

Lest there be any confusion, Justice Scalia

explained that there was no “interest balancing” for

judges to do, because “[t]he Second Amendment ...

[l]ike the First, ... is the very product of an interest

balancing by the people.”

Id. at 635.

The

constitutional text, as understood based on the history

and tradition of the founding era, determines its scope,

not the opinion of a judge who believes the government

has a good reason to violate the Constitution’s

protections. The “text, history and tradition” test leads

the lower courts to constitutionally faithful decisions,

while any “judge-empowering interest-balancing

inquiry” can never be trusted to be faithful to the

Constitution’s framers.

12

D. In Other Constitutional Contexts since

Heller, this Court Has Rightly Rejected

Balancing Tests for Some Version of

“Text, History and Tradition.”

There is reason to believe that this Court has been

moving in the direction suggested by the Chief Justice

and Justice Scalia in Heller. Indeed, since enunciating

the “text and history [and] historical tradition” test in

Heller (at 595, 627) and continuing in N.Y. State Rifle

& Pistol Ass’n v. Bruen, 597 U.S. 1, 19 (2022), this

Court has begun to jettison the atextual “baggage” of

interest balancing in other areas of constitutional

interpretation.

1.

Giles v. California

The same year this Court decided Heller, it also

applied a version of a text, history, and tradition

analysis to understanding the Confrontation Clause.

“[T]he Confrontation Clause is ‘most naturally read as

a reference to the right of confrontation at common

law, admitting only those exceptions established at

the time of the founding.’” Giles v. California, 554

U.S. 353, 358 (2008) (quoting Crawford v. Washington,

541 U.S. 36, 54 (2004)) (emphasis added).

2.

Kennedy v. Bremerton School District

With respect to the Establishment Clause, this

Court has explicitly repudiated the 1971 Lemon rule

which involved balancing. “First, the statute must

have a secular legislative purpose; second, its principal

or primary effect must be one that neither advances

13

nor inhibits religion ... finally, the statute must not

foster ‘an excessive government entanglement with

religion.’” Lemon v. Kurtzman, 403 U.S. 602, 612-13

(1971) (emphasis added). From Lemon in 1971

through 2021, this Court has often acted expressly to

disfavor religion in order to avoid such “excessive

entanglement.”

In 2022, this Court applied a version of the text,

history, and tradition test to the Establishment Clause

as well. “In place of Lemon and the endorsement test,

this Court has instructed that the Establishment

Clause must be interpreted by ‘reference to historical

practices and understandings.’”

Kennedy v.

Bremerton School District, 597 U.S. 507, 535 (2022)

(quoting Town of Greece v. Galloway, 572 U.S. 565, 576

(2014) (emphasis added).

In Town of Greece, this Court properly noted that

“[t]he line we must draw between the permissible and

the impermissible is one which accords with history

and faithfully reflects the understanding of the

Founding Fathers.” Id. at 577 (quoting School Dist.

of Abington Township v. Schempp, 374 U.S. 203, 294

(1963) (Brennan, J., concurring)) (emphasis added).

However, the Town of Greece Court had also credited

“political change” as somehow being relevant, ruling

that “[a]ny test the Court adopts must acknowledge a

practice that was accepted by the Framers and has

withstood the critical scrutiny of time and political

change.” Town of Greece at 577. The Bremerton

School District decision focused only on the practices of

the Founders: “An analysis focused on original

meaning and history ... has long represented the

14

rule rather than some exception within the Court’s

Establishment Clause jurisprudence.” Bremerton

School District at 536 (internal quotation omitted)

(emphasis added).

3.

Dobbs v. Jackson Women’s Health

Org.

Dobbs v. Jackson Women’s Health Org., 597 U.S.

215, 235 (2022) began with the text of the

Constitution: “Constitutional analysis must begin

with ‘the language of the instrument,’ ... which offers

a ‘fixed standard’ for ascertaining what our founding

document means, 1 J. Story, Commentaries on the

Constitution of the United States §399, p. 383 (1833).”

The Dobbs Court then looked at the time of the

Framing as the relevant time for determining “history

and tradition”:

A similar inquiry was undertaken in

McDonald [v. Chicago, 561 U.S. 742 (2010)],

which held that the Fourteenth Amendment

protects the right to keep and bear arms. The

lead opinion surveyed the origins of the Second

Amendment, the debates in Congress about

the adoption of the Fourteenth Amendment,

the state constitutions in effect when that

Amendment was ratified (at least 22 of the 37

States protected the right to keep and bear

arms), federal laws enacted during the same

period, and other relevant historical

evidence.... Only then did the opinion conclude

that “the Framers and ratifiers of the

Fourteenth Amendment counted the right to

15

keep and bear arms among those fundamental

rights necessary to our system of ordered

liberty.” [Id. at 238.]

Dobbs rejected “the critical scrutiny of time and

political change” and “judge-empowering balancing

tests” as having any relevance to the “text, history and

tradition” analysis. Dobbs said that the Court “must

guard against the natural human tendency to confuse

what [the Fourteenth] Amendment protects with our

own ardent views about the liberty that Americans

should enjoy.” Id. at 239.

4.

National Republican

Comm. v. FEC.

Senatorial

In a campaign finance case decided just two days

ago, this Court seemed to acknowledge the tension

between a “text and history” and an “interest

balancing” approach.

As a matter of text and history, therefore,

the restriction on political-party coordinated

expenditures would appear to violate the First

Amendment. But the Court’s precedents —

particularly Colorado II in 2001 [involving a

type of interest balancing] — cloud the issue

and require additional and more nuanced

analysis. [Nat’l Republican Senatorial Comm.

v. FEC, 2026 U.S. LEXIS 2886, *14-15 (June

30, 2026) (emphasis added).]

A clear statement from this Court that the First

Amendment should be interpreted without respect to

16

interest balancing could “uncloud” much First

Amendment analysis.

E. N.Y. State Rifle & Pistol Ass’n v. Bruen

and Beyond.

It is worth noting that the Bruen decision

reiterated and clarified Heller’s approach: “Heller does

not support applying means-end scrutiny.” Bruen at

19. The Court stated that the preferred balancing

approach of many circuits, a “two-step approach, ... is

one step too many.... Instead, the government must

affirmatively prove that its firearms regulation is part

of the historical tradition that delimits the outer

bounds of the right to keep and bear arms.” Id. And

the relevant time period for examination is

“‘founding-era historical precedent.’” Id. at 22. This

Court properly noted that “not all history is created

equal. ‘Constitutional rights are enshrined with

the scope they were understood to have when

the people adopted them.’” Id. at 34 (quoting Heller

at 634-35) (bolding added).

Like Dobbs, the Bruen Court also rejected the

“scrutiny of time and political change.” The Court

reminded lower courts that “to the extent later history

contradicts what the text says, the text controls....

‘[P]ostratification adoption or acceptance of laws that

are inconsistent with the original meaning of the

constitutional text obviously cannot overcome or alter

that text.’” Id. at 36. “‘The belated innovations of the

mid- to late-19th-century courts come too late to

provide insight into the meaning of [the Constitution

in 1787].’” Id. at 36-37.

17

Atextual tests are inherently confusing and

inherently subject to abuse by judges who are

determined to be a law unto themselves. As Chief

Justice Marshall put it, “The distinction, between a

government with limited and unlimited powers, is

abolished, if those limits do not confine the persons on

whom they are imposed.... [C]ourts, as well as other

departments, are bound by that instrument.” Marbury

v. Madison, 5 U.S. 137, 176, 180 (1803). “Judgeempowering balancing tests” are an open invitation to

judicial lawmaking — instead of interpretation. Only

the “text, history and tradition” test respects the

Constitution. As Chief Justice Marshall also stated,

“the enlightened patriots who framed our constitution,

and the people who adopted it, must be understood to

have employed words in their natural sense, and to

have intended what they have said.” Gibbons v.

Ogden, 22 U.S. 1, 188 (1824).

This Court reiterated this just last year:

“Observing the limits on judicial authority ... is

required by a judge’s oath to follow the law....

[E]veryone, from the President on down, is bound by

law.... That goes for judges too.” Trump v. CASA, Inc.,

606 U.S. 831, 858-59 (2025) (internal quotation

omitted).

These amici urge this court to reject all atextual

balancing tests with respect to the Free Exercise

Clause, and return courts to the one task which Chief

Justice Marshall described as saying “what the law is.”

The text, history, and tradition approach accomplishes

this objective.

18

II. THE COURTS BELOW HAVE CREATED A

ROADMAP TO USE THE SMITH TEST TO

STIFLE THE FREE EXERCISE OF

DISFAVORED RELIGIONS.

The decisions of the courts below validate

Colorado’s clever strategy to appear religiously neutral

while discriminating against Biblical morality. Using

this Court’s test in Employment Div. v. Smith, 494

U.S. 872 (1990), the rulings of the courts below have

encouraged other jurisdictions and other courts to

manipulate Smith to suppress whatever religious

doctrine may be disfavored in that locale.

Under Smith, if a law is “neutral” and “generally

applicable,” infringements on free exercise are

permissible, despite the clear textual command of the

Free Exercise Clause that “Congress shall make no

law ... prohibiting ... free exercise....” Under the Smith

test, governments like Colorado have declared open

season not on all religion, but on selected religious

doctrine disfavored by the state. While this Court has

attempted in some recent cases to place guardrails to

prevent misuse of Smith, those were circumvented.

Under the Colorado rule, religious institutions of all

sorts may participate, if they are willing to leave their

Biblical morality at the door. Thus, the Colorado rule

allows participation only by what might be termed

liberal “Christian” institutions.

With respect to the issue of same-sex marriage, the

decisions below betray the promise made by Justice

Kennedy in Obergefell that those who believe in

19

traditional marriage would never face discrimination.

See Obergefell v. Hodges, 576 U.S. 644, 679-80 (2015).5

A. The District Court Opinion Sanctioned

Discrimination against Traditional

Biblical Christianity.

In employing the Smith test to find the UPK law

“neutral and generally applicable,” the district court

cited this Court’s decision in Masterpiece Cakeshop v.

Colorado C.R. Comm’n, 584 U.S. 617 (2018). The court

asserted that this Court’s decision only addressed

situations where civil authorities openly and flagrantly

exhibited animus to certain religions, believing that

the Court there:

found the initial decisionmaking body

exhibited hostility to religion because

members of it “endorsed the view that

religious beliefs cannot legitimately be carried

into the public sphere or commercial domain,”

mentioned the religious justifications for

slavery and the Holocaust, and referred to

religious beliefs as “one of the most

despicable pieces of rhetoric that people can

use ... to hurt others.” [St. Mary I at 992

5

As decisions such as those below compound on each other, it

demonstrates how grievously in error was this Court’s Obergefell

decision. See how cases like this were predicted by one of these

amici in an amicus brief filed in Obergefell. See Obergefell v.

Hodges, Brief Amicus Curiae of Public Advocate of the United

States, et al. (Apr. 3, 2015) at 26-41.

20

(quoting Masterpiece Cakeshop at 634-35)

(emphasis added).]

Thus, the district court assumed that Masterpiece

Cakeshop should have no application where “[t]he

record contains no evidence that Defendants have

passed judgment on or presupposed the illegitimacy of

Plaintiffs’ religious beliefs and practices.” Id. at 993.

Absent open hostility, it was no problem that the

statute openly targeted Petitioners’ religious beliefs by

disqualifying them from the program.

The court also cited this Court’s decision in Fulton

v. City of Philadelphia, Pennsylvania, 593 U.S. 522

(2021). The court noted that in Fulton, this Court

tried to narrow Smith by ruling that “[a] law is not

generally applicable if it invite[s] the government to

consider the particular reasons for a person’s conduct

by providing a mechanism for individualized

exemptions.” St. Mary I at 994 (quoting Fulton at

533) (cleaned up) (emphasis added). Yet, for the courts

below, Fulton proved no more of a barrier to Colorado

than had Masterpiece Cakeshop.

Petitioners argued that Colorado conceded that the

“nondiscrimination” provisions in the UPK actually

contained a “catchall exemption [which] could be

used to allow preschools to admit only ‘gendernonconforming children’ and to prioritize serving

‘children of color from historically underserved areas’

and ‘the LGBTQ community,’” while “nevertheless

refusing to accommodate sincere religious exercise.”

Petition for Certiorari (“Pet.”) at 23 (emphasis added).

21

Thus, in both the text of the law and how it was

implemented, Colorado discriminated against Biblical

Christianity in three ways.

First, the basic

qualifications excluded applicants embracing

traditional Biblical morality.

Second, while

exemptions were allowed to opponents of Biblical

morality, its exemption policy prevented those

embracing traditional Biblical Christianity from

receiving one.

And third, making the State’s

discriminatory purposes even more clear, preferences

could be granted to those opposing, but not those

supporting, traditional Biblical Christianity. The

district court conceded that Dawn Odean, the director

of the UPK program, testified that “a participating

school could be just for ‘gender-nonconforming

children’ ... or could grant preference to a child based

on the child or family being part of the LGBTQ

community.” St. Mary I at 972.

B. The Tenth Circuit Decision Exhibited

Somewhat Different Flaws.

The Tenth Circuit also read Masterpiece Cakeshop

narrowly to apply only in the case of public expressions

of “‘clear and impermissible hostility toward the

sincere religious beliefs’ of the plaintiff.” St. Mary II at

767-68 (quoting Masterpiece Cakeshop at 634). Like

the district court, the Tenth Circuit was not concerned

that the law was predicated on hostility to traditional

Biblical Christianity so long as the discrimination was

buried in the conditions on the funding, and not openly

stated in a public forum. The lesson is that a state can

prefer some religions over another so long as it bars

them based on doctrine, not whether they had

22

attributes of a religious organization. The Tenth

Circuit actually found that here, “the record indicates

that the Colorado General Assembly passed ... the

nondiscrimination requirement to prevent

discrimination on any grounds, secular or

religious.” St. Mary II at 768 (emphasis added).

Actually, the purpose was “to prevent discrimination

on any grounds” other than against traditional Biblical

Christianity.

The Tenth Circuit echoed the district court’s

treatment of Fulton’s “individualized exemptions” as

well. The court ruled that “[u]nrelated exceptions [on

the basis of income or disability] do not mean that the

challenged portion of a law lacks general

applicability.” St. Mary II at 769.

Also, like the district court, the Tenth Circuit

discounted Director Odean’s testimony that a

preschool could include only LGBTQ children — as if

a toddler or young child in pre-school, before puberty,

is capable of developing fixed views about their

sexuality, unless those views are imposed on them by

adults. The court stated that it would not invalidate

a law based on “a series of hypotheticals posed

unexpectedly to one witness at trial,” despite conceding

that the questions were posed on direct examination

by the state, not on cross-examination. Id. at 770, 769.

“We do not interpret Director Odean’s testimony to

imply that the Department was using the catchall

preference to violate the nondiscrimination

requirement,” the court insisted. Id. at 770. As

Petitioners pointed out in their Petition:

23

The Department consistently treats the

Mandate not as a strict obligation, but as a

flexible provision that allows it to take into

consideration all kinds of other important

interests (e.g., helping kids with disabilities

and prioritizing historically discriminated

against communities), while nevertheless

refusing to accommodate sincere religious

exercise.

Respondents believe these

preferences are permissible because they

interpret the Mandate “to ensure that these

children and their families who historically

have been discriminated against aren’t.”

[citation omitted] ... But “that is word play.”

Maryville Baptist Church, Inc. v. Beshear, 957

F.3d 610, 614 (6th Cir. 2020) (rejecting

attempt to use clever drafting and

interpretation to get around practical impact

of the law). What matters is the real operation

of the law. [Pet. at 23-24.]

The roadmap the courts below have created, based

on Smith and Masterpiece, to enable government

preferences to all except those who embrace Biblical

Christianity, follows this three-step plan. First, state

officials must be careful to avoid any public statements

that reveal the state’s real intent and hostility toward

disfavored doctrines. Second, states must allow all

religions to participate, but then impose a doctrinebased secondary test to weed out those who believe in

disfavored doctrines. (Thus, a church that supports

both same-sex marriage and transgender doctrine

qualifies for its program, while a similar church down

the street that either supports traditional marriage or

24

opposes transgender doctrine is excluded.) Third,

when challenged, the State argues that it is not

religiously discriminating against anyone — so long as

they have the right views on secular matters. By

labeling these views as secular, the state hopes to

mask its discrimination against religious doctrine.

This last rationale is inconsistent with this Court’s

declaration that “secular humanism” is a religion. See

Torcaso v. Watkins, 367 U.S. 488, 495, n.11 (1961).

III. REYNOLDS V. UNITED STATES PROVIDES

A “TEXT AND HISTORY” MODEL THIS

COURT SHOULD FOLLOW TO RETURN TO

THE ORIGINAL MEANING OF THE FREE

EXERCISE CLAUSE.

Fortunately, this Court has an existing model to

follow in Reynolds v. United States, 98 U.S. 145 (1879).

The Court considered a free exercise challenge to a

Utah law against bigamy, upholding the law. This

Court’s analysis, based on the text and history of the

First Amendment, was consistent with the

methodology employed in Heller and Bruen.

This Court in Reynolds first sought to define what

free exercise protects. “The word ‘religion’ is not

defined in the Constitution. We must go elsewhere,

therefore, to ascertain its meaning, and nowhere more

appropriately, we think, than to the history of the

times in the midst of which the provision was adopted.

The precise point of the inquiry is, what is the

religious freedom which has been guaranteed.” Id. at

162.

25

The Court expressly adopted the definition of

religion posited by James Madison in 1785, in his

famous Memorial and Remonstrance Against Religious

Assessments. Opposing a bill to collect taxpayer

money for the support of preachers, Madison

championed a jurisdictional separation between the

powers of civil government and those matters of

conscience that must be left between man and God.

He wrote:

“Religion or the duty which we owe to our

Creator and the manner of discharging it, can

be directed only by reason and conviction, not

by force or violence.”

[quoting Virginia

Declaration of Rights, art. 16]. The Religion

then of every man must be left to the

conviction and conscience of every man; and it

is the right of every man to exercise it as these

may dictate. This right is in its nature an

unalienable right. It is unalienable; because ...

what is here a right towards men, is a duty

towards the Creator. It is the duty of every

man to render to the Creator such homage and

such only as he believes to be acceptable to

him. This duty is precedent, both in order of

time and in degree of obligation, to the claims

of Civil Society.... We maintain therefore that

in matters of Religion, no man’s right is

abridged by the institution of Civil Society and

that Religion is wholly exempt from its

26

cognizance.... [J. Madison, Memorial and

Remonstrance (emphasis added).6]

This Court in Reynolds adopted Madison’s

definition of religion as “the duty which we owe to our

Creator and the manner of discharging it.” See

Reynolds at 163. It also noted that the bill Madison

opposed was defeated the following year, 1786, and

Thomas Jefferson’s “Act for Establishing Religious

Freedom” was passed instead. Id. The preamble to

that Act reads, “to suffer the civil magistrate to

intrude his powers into the field of opinion and to

restrain the profession or propagation of principles on

supposition of their ill tendency is a dangerous fallacy,

which at once destroys all religious liberty....”7 It

continues, “it is time enough for the rightful purposes

of civil government for its officers to interfere when

principles break out into overt acts against peace and

good order....” Id.

The Act then provides, “no man shall be compelled

to frequent or support any religious worship, place, or

ministry whatsoever, nor shall be enforced, restrained,

molested, or burthened in his body or goods, or shall

otherwise suffer on account of his religious opinions or

belief; but that all men shall be free to profess, and by

argument to maintain, their opinions in matters of

6

II The Writings of James Madison at 184-85, G. Hunt, ed. (G.P.

Putnam’s Sons: 1901).

7

Thomas Jefferson, The Jeffersonian Cyclopedia: A

Comprehensive Collection of the Views of Thomas Jefferson at

976, J. Foley, ed. (Funk & Wagnalls: 1900).

27

religion....” Id. The Act remains enshrined today as

Article I, Section 16 of the Virginia Constitution.

The Reynolds Court incorporated Madison’s

definition of “religion” as the best expression of the

intent of the Framers of the Free Exercise Clause. As

applied in Reynolds, this Court noted that:

after a recital “that to suffer the civil

magistrate to intrude his powers into the field

of opinion, and to restrain the profession or

propagation of principles on supposition of

their ill tendency, is a dangerous fallacy which

at once destroys all religious liberty,” it is

declared “that it is time enough for the rightful

purposes of civil government for its officers to

interfere when principles break out into overt

acts against peace and good order.” In these

two sentences is found the true distin[c]tion

between what properly belongs to the church

and what to the State. [Reynolds at 163.]

The Reynolds Court cited pagan religious practices

such as human sacrifice and noted that these practices

would constitute “overt acts against peace and good

order,” and thus could be banned without threatening

Free Exercise. Id. at 166. The Court then went on to

consider the state of bigamy laws when the First

Amendment was written:

[I]t is a significant fact that on the 8th of

December, 1788, after the passage of the act

establishing religious freedom, and after the

convention of Virginia had recommended as an

28

amendment to the Constitution of the United

States the declaration in a bill of rights that

“all men have an equal, natural, and

unalienable right to the free exercise of

religion, according to the dictates of

conscience,” the legislature of that State

substantially enacted the [bigamy] statute of

[King] James I., death penalty included....

From that day to this we think it may safely

be said there never has been a time in any

State of the Union when polygamy has not

been an offence against society, cognizable by

the civil courts and punishable with more or

less severity. In the face of all this evidence, it

is impossible to believe that the constitutional

guaranty of religious freedom was intended to

prohibit legislation in respect to this most

important feature of social life. [Reynolds at

165 (emphasis added).]

Because there was a directly analogous Virginia

statute against bigamy, passed the year after the

Statute for Religious Freedom (the lineal ancestor of

the Free Exercise Clause), and because bigamy

prohibitions had been widespread among the states

ever since, the Court determined that the text and

history of the Free Exercise Clause did not protect

bigamy. Notably, the Court conducted no balancing

tests. It did find marriage and family to be important

state interests, but upheld the bigamy prohibition, not

because the government interest outweighed the

religious exercise of the plaintiff, but because the act

of bigamy was subject to the authority of civil

29

government, and not protected by those who framed

the Free Exercise Clause.

Madison and Jefferson would consider the entire

modern paradigm of compulsory, government-funded

primary education as intruding the state into the field

of “religion,” thereby violating the Free Exercise

Clause. As law professor Jeffrey Tuomala explains:

“Madison defines ‘religion’ in a legal context and is not

giving it a theological definition.... The jurisdiction

of religion includes not only prayer, Bible reading,

worship, and proselytizing, but also education,

charity, and more. Religion includes any thought,

speech, or action not properly within the jurisdiction of

civil government to sanction.” By Madison’s definition,

“[i]f the state has no legitimate interest in punishing

an action, it is within the jurisdiction of religion, i.e.,

the freedom of conscience.”8 Jefferson’s Virginia

Statute for Religious Freedom reinforces this view,

that “to compel a man to furnish contributions of

money for the propagation of opinions which he

disbelieves and abhors, is sinful and tyrannical; that

even the forcing him to support this or that teacher of

his own religious persuasion, is depriving him of ...

liberty....”9 However, under the very different modern,

atextual view that it is possible to have such a thing as

“secular” education, the rule must be that the state

may not discriminate against disfavored religious

8

Jeffrey Tuomala, “Is Tax-Funded Education Unconstitutional?”

18 Liberty U. L. Rev. 1009, 1026, 1030 (Mar. 2024).

9

Francis Hirst, Life and Letters of Thomas Jefferson 139

(MacMillan Co. 1926).

30

doctrines such as Biblical Christianity, as occurred

here.

The Reynolds Court was entirely correct in looking

to the text and history of the Free Exercise Clause, as

this Court did in Bruen, to determine whether a given

restriction had a historical analogue in the founding

era. This Court should jettison both the “generally

applicable” and “compelling interest” tests, and follow

Reynolds in assessing the text and history of the Free

Exercise Clause in the context of Colorado’s law here.

Once that assessment is done, the UPK’s exclusion of

religious schools cannot stand.

IV. VIEWED IN THE LIGHT OF THE TEXT AND

HISTORY OF THE FREE EXERCISE

CLAUSE, COLORADO’S UPK RESTRICTION

ON CERTAIN RELIGIOUS SCHOOLS

CANNOT STAND.

There are no relevant historical analogues from

the Founding era allowing states to discriminate

against religious entities based on whether their

doctrine is consistent with Colorado’s position in

recognizing and protecting the “sexual orientation” of

same-sex attracted persons, and giving individuals the

ability to deny the created order based on modern

notions of “gender identity.”

Rather, as this Court noted as recently as 1986,

“[s]odomy was a criminal offense at common law and

was forbidden by the laws of the original 13 States

when they ratified the Bill of Rights. In 1868, when

the Fourteenth Amendment was ratified, all but 5 of

31

the 37 States in the Union had criminal sodomy laws.”

Bowers v. Hardwick, 478 U.S. 186, 192-93 (1986)

(overruled by Lawrence v. Texas, 539 U.S. 558 (2003)).

It is utterly impossible to construct a reality in

which the Founding generation would have penalized

a religious institution for taking a public position

against homosexuality, same-sex marriage, or

“transgender” ideology. Indeed, when this Court saw

fit to override Bowers, it explicitly rejected looking to

Founding-era history and tradition in interpreting the

Constitution, stating “[o]ur laws and traditions in the

past half century are of most relevance here. These

references show an emerging awareness that liberty

gives substantial protection to adult persons in

deciding how to conduct their private lives in matters

pertaining to sex.” Lawrence at 571-72.

The first state law prohibiting “discrimination”

against homosexuals in employment or housing was

passed in 1982, in Wisconsin.10 There is no state law

before 1982 that would even suggest any “government

interest” in restricting the free exercise of religious

persons or entities in favor of “sexual orientation” or

“gender identity.” Nothing in the text or history of the

Free Exercise Clause even hints at permitting

government to disfavor a religious entity because it

holds to a position universal in American law at the

time of the Framing.

10

Milwaukee Public Library, “First in the Nation - Wisconsin’s

Gay Rights Law,” MPL.org (June 18, 2015).

32

This Court should not follow the Lawrence Court’s

error of finding that “laws and traditions in the past

half century are of most relevance here.” As this Court

rightly noted in Bruen, “late-19th-century evidence

cannot provide much insight into the meaning of the

[Constitution] when it contradicts earlier evidence.”

Bruen at 66. Rather, this Court should heed Chief

Justice Roberts’ warning and jettison the “baggage

that the First Amendment picked up,” in favor of a

careful assessment of the scope of the right as

understood by the Framers.

Indeed, this Court ruled just last year that “a

government cannot condition the benefit of free public

education on parents’ acceptance of ... instruction” that

poses “‘a very real threat of undermining’ the religious

beliefs and practices that the parents wish to instill.”

Mahmoud v. Taylor, 606 U.S. 522, 530 (2025) (quoting

Wisconsin v. Yoder, 406 U.S. 205, 218 (1972)). “Public

education is a public benefit, and the government

cannot ‘condition’ its ‘availability’ on parents’

willingness to accept a burden on their religious

exercise.” Id. at 561. Colorado has instead imposed

the burden on the religious exercise of religious

schools, as well as the schools’ children and their

parents, by requiring schools to drop their religious

opposition to homosexuality and admit children of

practicing homosexuals in order to receive equal access

to state funds.

33

V. THE

UPK

RESTRICTION

AGAINST

CERTAIN RELIGIOUS SCHOOLS ALSO

VIOLATES THE ESTABLISHMENT CLAUSE.

Although this amicus brief primarily focuses on

the UPK program’s threat to Free Exercise, the

program impermissibly violates the Establishment

Clause as well.

Colorado is correct that Petitioners’ position —

that marriage and sexual activity should be confined

to monogamous heterosexual relationships, and that

the sexes are distinct and non-fungible and children

should be taught accordingly — is rooted in religious

belief. No less religious is Colorado’s support for

homosexuality and transgenderism. Both positions

are moral assertions, inescapably rooted in religion.

This Court has noted “[i]f an individual deeply and

sincerely holds beliefs that are purely ethical or moral

in source and content but that nevertheless impose

upon him a duty ... those beliefs certainly ... function

as a religion in his life....” Welsh v. United States, 398

U.S. 333, 340 (1970).

As this Court has repeatedly ruled, “[t]he

‘establishment of religion’ clause of the First

Amendment means at least this: Neither a state nor

the Federal Government can ... pass laws which aid

one religion ... or prefer one religion over another.”

Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947). “[T]he

‘First Amendment mandates governmental neutrality

between religion and religion, and between religion

and nonreligion.’” McCreary County v. ACLU, 545

U.S. 844, 860 (2005) (quoting Epperson v. Arkansas,

34

393 U.S. 97, 104 (1968). Accordingly, government may

not “‘impose[] special disabilities on the basis of ...

religious status....’” Church of Lukumi Babalu Aye v.

City of Hialeah, 508 U.S. 520, 533 (1993).

But Colorado’s UPK permits the state to advance

its religious values by calling them a ban on

“discrimination.” At the same time, the state imposes

burdens on Petitioners for advancing their religious

values that “[s]exual identity, embodiment as either a

man or a woman is a gift that is given to us from the

moment of creation,” that “mothers and fathers are

[not] interchangeable”11 and children should have a

right to be raised by both a mother and a father, and

that (as this Court recognized in Reynolds) “[u]pon

[monogamous marriage] society may be said to be

built,” and upon it “the principles on which the

government of the people, to a greater or less extent,

rest[].” Reynolds at 165-66. This is what the

Establishment Clause plainly forbids.

CONCLUSION

For the foregoing reasons, the decision below

should be reversed.

11

St. Mary I at 975.

35

Respectfully submitted,

RICK BOYER

INTEGRITY LAW FIRM

P.O. Box 10953

Lynchburg, VA 24506

WILLIAM J. OLSON*

JEREMIAH L. MORGAN

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

wjo@mindspring.com

*Counsel of Record

Attorneys for Amici Curiae

July 2, 2026