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 IN LITTLETON, et al.,
Petitioners,
V.
LISA ROY, in her official capacity as Executive Director
of the Colorado Department of Early Childhood, et al.,
Respondents.
——————
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
BRIEF OF AMICI CURIAE
STATE OF WEST VIRGINIA
AND 20 OTHER STATES
IN SUPPORT OF PETITIONERS
JOHN B. MCCUSKEY
Attorney General
OFFICE OF THE
WEST VIRGINIA
ATTORNEY GENERAL
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25305
mwilliams@wvago.gov
(304) 558-2021
MICHAEL R. WILLIAMS
Solicitor General
Counsel of Record
EMILY C. AHLSTROM*
Assistant Solicitor General
Counsel for Amicus Curiae State of West Virginia
TABLE OF CONTENTS
Introduction and Interests of Amici Curiae ..................... 1
Summary of Argument ........................................................ 3
Argument .............................................................................. 4
I.
Colorado’s exclusion of St. Mary’s violates the
Free Exercise Clause .................................................. 4
A. States may not circumvent the First
Amendment using requirements that are
only superficially neutral ......................................... 5
B. Despite its facial neutrality, Colorado’s
exclusion targets religion in a non-generally
applicable way......................................................... 11
C. Colorado’s exclusion fails strict scrutiny ............. 17
II.
Antidiscrimination law is the latest—and
perhaps most potent—tool used to punish
unpopular religious exercise .................................... 20
III. Finding covertly discriminatory laws to be
constitutionally permissible would threaten
the system of public-religious partnerships. .......... 32
Conclusion ........................................................................... 35
II
TABLE OF AUTHORITIES
Cases
Page(s)
303 Creative LLC v. Elenis,
600 U.S. 570 (2023) ....................................................... 17
Boy Scouts of Am. v. Dale,
530 U.S. 640 (2000) ....................................................... 12
Carson v. Makin,
596 U.S. 767 (2022) ............................................. 8, 13, 32
Cath. Charities Bureau, Inc. v. Wisc. Lab.
& Indus. Rev. Comm’n,
605 U.S. 238 (2025) ............................................. 9, 16, 33
Church of Lukumi Babalu Aye, Inc. v.
City of Hialeah.,
508 U.S. 520 (1993) ...... 5, 8, 10, 14, 15, 18, 19, 25, 31, 32
Comm. For Pub. Educ. & Religious
Liberty v. Nyquist,
413 U.S. 756 (1973) ....................................................... 22
Duquesne Univ. of the Holy Spirit v.
NLRB,
947 F.3d 824 (D.C. Cir. 2020) ........................................ 6
Employment Division v. Smith,
494 U.S. 872 (1990) ......................................................... 6
Espinoza v. Mont. Dep’t of Revenue,
591 U.S. 464 (2020) ..................................7, 13, 19, 21, 22
Everson v. Bd. of Educ. of Ewing Twp.,
330 U.S. 1 (1947) ............................................................. 5
Fellowship of Christian Athletes v. San
Jose Unified Sch. Dist. Bd. of Educ.,
82 F.4th 664 (9th Cir. 2023) ......................................... 15
III
Fowler v. Rhode Island,
345 U.S. 67 (1953) ............................................... 9, 16, 23
Fulton v. City of Philadelphia,
593 U.S. 522 (2021) ................ 7, 9, 11, 13, 15, 16, 17, 18,
19, 20, 33
Hosanna-Tabor Evangelical Lutheran
Church & Sch. v. EEOC,
565 U.S. 171 (2012) ......................................................... 6
Kennedy v. Bremerton Sch. Dist.,
597 U.S. 507 (2022) ............................................. 9, 20, 25
Loe v. Jett,
796 F. Supp. 3d 541 (D. Minn. 2025) ........................... 31
Lovell v. City of Griffin,
303 U.S. 444 (1938) ...................................................... 23
Mahmoud v. Taylor,
606 U.S. 522 (2025) ......................................................... 9
Masterpiece Cakeshop v. Colo. C.R.
Comm’n,
584 U.S. 617 (2018) ................................................... 8, 20
McRaney v. N. Am. Mission Bd. of the S.
Baptist Convention, Inc.,
157 F.4th 627 (5th Cir. 2025) ....................................... 12
Meek v. Pittenger,
421 U.S. 349 (1975) ....................................................... 22
Meriwether v. Hartop,
992 F.3d 492 (6th Cir. 2021) ......................................... 12
Mid Vt. Christian Sch. v. Saunders,
No. 2:23-CV-652, 2026 WL 1296339
(D. Vt. May 12, 2026) .............................................. 30, 31
IV
Mitchell v. Helms,
530 U.S. 793 (2000) ................................................... 1, 21
Murdock v. Pennsylvania,
319 U.S. 105 (1943) ....................................................... 23
Nat’l Fed’n of Indep. Bus. v. Sebelius,
567 U.S. 519 (2012) ....................................................... 12
Niemotko v. Maryland,
340 U.S. 268 (1951) ....................................................... 23
Our Lady of Guadalupe Sch. v. MorrisseyBerru,
591 U.S. 732 (2020) ................................................. 14, 28
Roberts v. U.S. Jaycees,
468 U.S. 609 (1984) ....................................................... 27
Roman Cath. Diocese of Brooklyn v.
Cuomo,
592 U.S. 14 (2020) ....................................... 10, 15, 24, 25
Rosenberger v. Rector & Visitors of Univ.
of Va.,
515 U.S. 819 (1995) ....................................................... 25
SFFA v. Harvard,
600 U.S. 181 (2023) ....................................................... 19
Sherbert v. Verner,
374 U.S. 398 (1963) ............................................. 5, 12, 31
St. Dominic Acad. v. Makin,
744 F. Supp. 3d 43 (D. Me. 2024) ................................ 29
Tandon v. Newsom,
593 U.S. 61 (2021) ............................................. 10, 16, 24
Tex. Monthly, Inc. v. Bullock,
489 U.S. 1 (1989) ........................................................... 32
V
Thomas v. Rev. Bd. of Ind. Emp. Sec. Div.,
450 U.S. 707 (1981) ......................................................... 9
Trinity Lutheran Church of Columbia,
Inc. v. Comer,
582 U.S. 449 (2017) ......................................... 6, 7, 13, 20
W. Va. State Bd. of Educ. v. Barnette,
319 U.S. 624 (1943) ....................................................... 23
Walz v. Tax Comm’n of City of N.Y.,
397 U.S. 664 (1970) ......................................................... 9
Wisconsin v. Yoder,
406 U.S. 205 (1972) ............................................. 6, 12, 14
Youth 71Five Ministries v. Williams,
160 F.4th 964 (9th Cir. 2025) ....................................... 35
Statutes
42 U.S.C. § 2000cc .............................................................. 24
5 M.R.S. § 4553(2-A)........................................................... 28
5 M.R.S. § 4602 ................................................................... 29
An Act to Extend Civil Rights Protections
to All People Regardless of Sexual
Orientation, ch. 10, § 21, 2005 Me. Laws
70, 76 (2005),
https://tinyurl.com/5at4km62 ...................................... 29
An Act to Improve Consistency in
Terminology and within the Maine
Human Rights Act, ch. 366, § 19, 2021
Me. Laws 761 (2021),
https://tinyurl.com/37tybkc5 ....................................... 29
NORTHWEST ORDINANCE OF 1787 .................................... 34
VI
Other Authorities
146 Cong. Rec. S7774
(daily ed. July 27, 2000) (joint statement
of Sens. Hatch and Kennedy),
https://tinyurl.com/3dt6jskh ........................................ 24
22-004 VT. CODE R. § 2223.2,
https://tinyurl.com/5ass3se9 ........................................ 30
Aaron Tang,
Who’s Afraid of Carson v. Makin?,
132 YALE L. J. FORUM 504 (2022) ............................... 31
Associated Press,
Vermont Christian School Challenges
State’s New Education Funding Law
in Court, U.S. NEWS (Nov. 5, 2025),
https://tinyurl.com/mprpt2ch ...................................... 30
Brief of Catholic Charities USA as Amicus
Curiae in Support of Petitioner,
Catholic Charities Bureau, Inc. v.
Wisc. Labor & Industry Review
Commission, No. 24-154
(U.S. Feb. 3, 2025) ........................................................ 34
CATHOLIC CHARITIES USA,
PATHWAYS FORWARD: 2024 ANNUAL
REPORT (2024),
https://tinyurl.com/bddrxcec ....................................... 33
Colleen Hroncich,
Curtailing Religious Liberties at
Maryland Private Schools Is No April
Fool’s Day Prank, CATO INST.:
CATO AT LIBERTY (Mar. 31, 2026 3:22
PM), https://tinyurl.com/mpzzs22d ............................ 32
VII
Cooperative Agreement between HHS and
Lutheran Immigration and Refugee
Services Inc, USASPENDING,
https://tinyurl.com/2hwwesxt ...................................... 33
Corey McDonald,
Vermont’s new education law signals
an end to state funding for religious
schools, VTDigger (Aug. 20, 2025),
https://tinyurl.com/3r5mazhx ...................................... 30
Derek W. Black,
Religion, Discrimination, and the
Future of Public Education,
13 UC IRVINE L. REV. 805 (2023) ........................ 26, 27
Douglas Laycock,
State RFRAs and Land Use
Regulation,
32 U.C. DAVIS L. REV. 755 (1999) ......................... 23, 24
Faith groups provide the bulk of disaster
recovery, in coordination with FEMA,
RELIGION NEWS SERV. (Sept. 11, 2017),
https://tinyurl.com/59d7vyen....................................... 33
H.B. 850, 2022 Leg., Reg. Sess. (Md. 2022)
(passed May 29, 2022) .................................................. 31
Hannah Bailey,
A New Minority in the Courts: How
the Rhetoric of Christian Victimhood
and the Supreme Court Are
Transforming the Free Exercise
Clause,
73 SYRACUSE L. REV. 199 (2023)................................. 26
VIII
Helen M. Alvaré,
Religious Freedom As Freedom,
50 B.Y.U. L. REV. 1191 (2025) ..................................... 27
Jenny Ortman,
How is the Salvation Army Funded?,
WAR CRY, https://tinyurl.com/mwnf36sf.................... 33
John D. Inazu,
More Is More: Strengthening Free
Exercise, Speech, and Association,
99 MINN. L. REV. 485 (2014) ........................................ 26
John W. Whitehead,
The Conservative Supreme Court and
the Demise of the Free Exercise of
Religion,
7 TEMP. POL. & CIV. RTS. L. REV. 1
(1997) .............................................................................. 25
Katie Eyer,
Anti-Transgender Constitutional Law,
77 VAND. L. REV. 1113 (2024) ...................................... 26
Kyle Duncan,
Secularism’s Laws: State Blaine
Amendments and Religious
Persecution,
72 FORDHAM L. REV. 493 (2003) ................................. 22
L.D. 1688, 130th Leg., 1st Spec. Sess. (Me.
2021), https://tinyurl.com/3fstyva8 ............................. 28
Lance D. Laird & Wendy Cadge,
Negotiating Ambivalence: The Social
Power of Muslim Community-Based
Health Organizations in America, 33
POLAR: POL. & LEGAL ANTHROPOLOGY
REV. 225 (2010) ............................................................. 34
IX
Lee Irwin,
Freedom, Law, and Prophecy: A Brief
History of Native American Religious
Resistance,
21 AM. INDIAN Q. 35 (1997),
https://tinyurl.com/5685hxy6 ....................................... 22
Letter from Daniel M. French, Vermont
Sec’y of Educ., to Superintendents, on
Tuition Payments to ReligiouslyAffiliated Approved Independent
Schools (Sept. 13, 2022),
https://tinyurl.com/mr6r6x2h ...................................... 29
Lindsey M. Wood,
Free Exercise or Forced
Establishment? Why the Supreme
Court Got Carson v. Makin Wrong and
What Vermont Can Do About It, 49 VT.
L. REV. 424 (2025)................................................... 26, 29
LUTHERAN IMMIGRATION AND REFUGEE
SERVICE, INC,
CONSOLIDATED FINANCIAL
STATEMENTS AND INDEPENDENT
AUDITOR’S REPORT (2023),
https://tinyurl.com/yjpd47um ...................................... 34
Mark J. DeHaven, et al.,
Health Programs in Faith-Based
Organizations: Are They Effective?,
94 AM. J. PUB. HEALTH 1030 (2004). .......................... 34
X
Press Release,
Colo. Dep’t of Early Childhood,
Saving Coloradans an Average of
$6,300 Per Year, Colorado’s Universal
Preschool Program Opens Enrollment
for Upcoming 2026-27 Program Year
While Current Year Enrollment
Continues (Dec. 9, 2025),
https://tinyurl.com/4zxdfjw9........................................ 13
Press Release,
Colo. Governor Jared Polis,
Colorado’s Universal Preschool
Program Opens Enrollment for
Upcoming 2025-26 School Year While
Current Year Enrollment Continues
(Dec. 17, 2024),
https://tinyurl.com/52rje4ku........................................ 20
Richard W. Garnett & Jackson C. Blais,
Religious Freedom and Recycled Tires:
The Meaning and Implications of
Trinity Lutheran,
2017 CATO SUP. CT. REV. 105 ...................................... 21
Spencer T. Proffitt,
Gods Behind Bars: How Religious
Liberty Has Been Sent Directly to Jail,
and How to Get Out of Jail Free,
40 ARIZ. ST. L.J. 1401 (2008) ....................................... 22
Voluntary, Faith-based and NonGovernmental Organizations Help
Communities After Severe Winter
Weather, FEMA (last updated Feb. 3,
2026), https://tinyurl.com/ypzkjsvu ............................ 33
XI
Volunteers of America,
FORBES, https://tinyurl.com/4ms2dnw3 ..................... 33
Wagering on Religious Liberty, 116 HARV.
L. REV. 946 (2003)......................................................... 22
INTRODUCTION
AND INTERESTS OF AMICI CURIAE
Colorado created a universal preschool funding
program—then barred Catholic-affiliated preschools
from participating. The State believes that key tenets of
Catholic theology, including core beliefs on matters like
marriage and biological sex, are nothing more than
discrimination. It has thus declared that Catholic
preschools can receive funding only if they admit families
who oppose these aspects of the Catholic faith. In short,
Colorado calls the preschools’ fidelity to their religious
beliefs unlawful bigotry.
The State’s exclusion of Catholic preschools violates
the Free Exercise Clause. State-level “hostility” toward
religious practice—and particularly toward “aid to
pervasively sectarian schools”—has a long and “shameful
pedigree” in America. Mitchell v. Helms, 530 U.S. 793,
828 (2000) (plurality opinion). And regrettably, a new
brand of anti-religious lawmaking—applying “nondiscrimination” provisions like these to exclude religious
organizations—is coming into vogue. States like Colorado
may be savvy enough to avoid express religious targeting.
But this more subtle religious discrimination is
unconstitutional all the same.
Colorado’s exclusion serves no legitimate interest. For
one, it harms the very children that the State designed the
preschool program to serve. By excluding Catholic
schools, Colorado has denied Catholic families equal
access to quality preschool education, defeating the
program’s central aim of “universal” access. For another,
by smearing Catholicism as prejudice, it has stamped a
disfavored label on people of faith.
2
It makes no difference that Colorado has acted under
the guise of non-discrimination. Conditioning funds on
agreement to state-approved, anti-religious orthodoxy is a
First Amendment violation, full stop. After all, religious
schools need to maintain religious cohesion and doctrinal
clarity; antidiscrimination laws that require religious
schools to admit religious dissidents stifle these First
Amendment protected goals. So a Catholic school like St.
Mary’s cannot admit someone who disavows Catholic
teachings without undermining its free exercise of
religion—along with that of all its members.
Of course, in many instances, antidiscrimination laws
further legitimate state interests. States often pursue
worthy goals of ending status-based discrimination. And
most groups lack a constitutionally legitimate reason to
distinguish persons based on protected characteristics.
But these laws can also pose a special danger: Overly
rigid antidiscrimination requirements may appear facially
neutral, but they inescapably disqualify disfavored
religious exercise.
Just so here.
Because
antidiscrimination laws often impose no similar burden on
secular conduct, they have proven to be effective for
covertly excluding disfavored religious groups.
So
Colorado is no outlier. Across the country, legislatures
hostile to religion have taken note, and a growing number
of States have adopted the same strategy.
If this Court sanctions the decision below, this
constitutional workaround will become par for the course.
The First Amendment demands better. The Court should
reverse.
3
SUMMARY OF ARGUMENT
I. Although the statute does not explicitly target
religion, the First Amendment does not protect against
express religious discrimination alone. Government
hostility towards religious institutions violates the
Constitution, even if the State employs a little subtlety in
achieving its discriminatory aim. The State also acts
unconstitutionally when it pursues its interests against
religion while permitting comparable secular conduct to
go unregulated.
Here, Colorado violated St. Mary’s First Amendment
rights. As in many of this Court’s earlier free exercise
cases, Colorado has excluded St. Mary’s from a public
benefit program. It did so in a way that’s inconsistent with
its treatment of secular groups, too. But this time, it tried
to use the State’s antidiscrimination law as a shield. The
nondiscrimination label makes no difference. Again:
Under the First Amendment, covert exclusion fares no
better than overt exclusion.
II. American history is scarred by a recurring pattern:
majorities using the law to discriminate against religious
minorities who hold unpopular religious viewpoints. Over
time, this Court has rebuked many of those attempts. But
when one door closes, another one opens. So legislatures
antagonistic toward religion always seem to find new ways
to accomplish the same old discriminatory aims. The
Court must therefore remain vigilant.
In the context of education, States have long
discriminated against religion.
Often, States
accomplished this discrimination through nonsectarian or
other similarly overt requirements—requirements that,
on their face, excluded religious people and groups. But
4
after this Court’s firm and repeated free exercise
guidance, those approaches are off the table.
So now that openly anti-religious legislation is
foreclosed, governments who oppose traditional religious
views have gotten creative. The new trend wields
antidiscrimination requirements as weapons to take out
religious groups that hold unpopular beliefs, especially on
marriage or sexuality. Colorado’s actions fit that pattern.
Hostile governments, then, can apply technically neutral
criteria in a way that inevitably punishes those religious
beliefs.
This attempted workaround is gaining steam. It is no
secret that traditional, religious views on marriage,
gender, and sexuality are no longer politically popular in
certain quarters. But those views still merit First
Amendment protection when bound up with religion.
Without redirection from this Court, States can continue
circumventing free exercise rights by pursuing the
strategy Colorado has displayed here.
III. The ripple effects of endorsing Colorado’s law
won’t stop with education. States can weaponize the same
tactic against any religious organization that receives
government funding for any public benefit program.
Religious groups play an enormous role in social service
programs. So if States can exclude them, religious
institutions and the public will suffer.
ARGUMENT
I.
Colorado’s exclusion of St. Mary’s violates the
Free Exercise Clause.
Colorado insists that it “welcomes faith-based
providers” into its preschool program. BIO.1. It can only
5
make this claim by willfully ignoring the actual effects of
its legislative choices. But First Amendment protections
do not hinge on bare text. The Free Exercise Clause
requires more.
A. States may not circumvent the First
Amendment using requirements that are
only superficially neutral.
1. The First Amendment forbids States from
“discriminat[ing] against individuals or groups because
they hold religious views abhorrent to the authorities.”
Sherbert v. Verner, 374 U.S. 398, 402 (1963). The
government likewise may not declare people ineligible for
a benefit based on the practice of their religion. Id. at 404;
Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 16
(1947). Any other rule would allow the government to
place an “unmistakable” “pressure” on individuals to
surrender “precepts of [their] religion.” Sherbert, 374
U.S. at 404. And that pressure would unconstitutionally
“penalize” people for exercising their First Amendment
rights. Id. at 406 (cleaned up).
Even a modest articulation of free exercise rights
protects “religious observers against unequal treatment.”
Church of Lukumi Babalu Aye, Inc. v. City of Hialeah.,
508 U.S. 520, 542 (1993) (cleaned up). States are not to be
an “adversary” of religion, nor can States wield their
power to “handicap religions.” Everson, 330 U.S. at 17-18.
The “purpose of the First Amendment” is “obviously not”
to “make it … more difficult” for religious groups to
practice their faiths. Id. at 18. So even under the narrow
view of what the Free Exercise Clause demands, States
“may not constitutionally apply … eligibility provisions”
in a way that constrains people “to abandon [their]
religious convictions.” Sherbert, 374 U.S. at 410.
6
But the First Amendment goes further. It gives
“special solicitude to the rights of religious” groups and
individuals.
Hosanna-Tabor Evangelical Lutheran
Church & Sch. v. EEOC, 565 U.S. 171, 189 (2012). And
even when a State exercises its “broad police power” to
further important government interests, the First
Amendment imposes stiff limits. Wisconsin v. Yoder, 406
U.S. 205, 214, 220 (1972). “[A]reas of conduct protected by
the Free Exercise Clause” often fall “beyond the power of
the State to control.” Id. Especially when a State has
demonstrated that it can make accommodations to its
asserted policies, it must offer similar accommodations to
religious practitioners and their “religious organizations.”
Duquesne Univ. of the Holy Spirit v. NLRB, 947 F.3d 824,
828 (D.C. Cir. 2020) (cleaned up).
2. The strong prohibitions against laws disfavoring
religious organizations have remained even after
Employment Division v. Smith, 494 U.S. 872 (1990).
Indeed, this Court has always “been careful to distinguish
[neutral and generally applicable] laws from those that
single out the religious for disfavored treatment.” Trinity
Lutheran Church of Columbia, Inc. v. Comer, 582 U.S.
449, 460 (2017). A few recent cases show how this principle
applies in practice.
Take Trinity Lutheran first. There, this Court held
that Trinity Lutheran had a First Amendment right “to
participate in [Missouri’s] government benefit
program”—a playground grant program—“without
having to disavow its religious character.” 582 U.S. at 463.
Because
“[t]he
Department’s
policy
expressly
discriminate[d] against otherwise eligible recipients by
disqualifying them from a public benefit solely because of
their religious character,” it was subject to “the most
7
exacting scrutiny.” Id. at 462. And under that scrutiny,
the policy crumbled. Id. at 466.
Espinoza extended Trinity Lutheran’s rule to a
different context: private education. Although States
“need not subsidize private education,” once they do, they
“cannot disqualify some private schools solely because
they are religious.” Espinoza v. Mont. Dep’t of Revenue,
591 U.S. 464, 487 (2020). The Court stressed how
discrimination against religious institutions also works
discrimination against religious people:
Laws like
Montana’s “burden[ed] not only religious schools but also
the families whose children attend or hope to attend
them.” Id. at 486. And religious people “are members of
the community too, [so] their exclusion from the
scholarship program … [was] odious to our Constitution.”
Id. at 488-89 (cleaned up).
Fulton examined the principle in the face of a
nondiscrimination clause.
Catholic Social Services
believed that “marriage [was] a sacred bond between a
man and a woman,” and therefore that it could not certify
same-sex couples for foster care. Fulton v. City of
Philadelphia, 593 U.S. 522, 530 (2021). But—in the name
of enforcing its nondiscrimination provision—the City
refused to enter a contract with CSS unless CSS
surrendered that belief. Id. at 531. This Court held that
the City “burdened CSS’s religious exercise by putting it
to the choice of curtailing its mission or approving
relationships inconsistent with its beliefs.” Id. at 532. And
that burden was unconstitutional. Id. at 542.
Tracking some of the ideas from Fulton, Carson
followed the same trajectory as Trinity Lutheran and
Espinoza—and went a few steps further. The schools in
Carson too were “disqualified from [a] generally available
benefit”—tuition assistance—“solely because of their
8
religious character.” Carson v. Makin, 596 U.S. 767, 780
(2022) (cleaned up). The tie to Espinoza was particularly
unmistakable; although “the wording of the Montana and
Maine provisions [was] different, their effect [was] the
same.” Id. “[N]othing neutral” can be found in a program
that operates to exclude only religious groups. Id. at 781.
This Court also rejected Maine’s attempts to
distinguish Carson from Trinity Lutheran and Espinoza.
596 U.S. at 782. Of most relevance here, it repudiated the
idea that States can “recast a condition on funding” in a
way that would reduce the First Amendment analysis “to
a simple semantic exercise.” Id. at 784 (cleaned up).
Otherwise, this Court’s First Amendment jurisprudence
“would be rendered essentially meaningless.” Id. So the
free exercise inquiry turns on “substance,” not on “the
presence or absence of magic words.” Id. at 785.
Trinity Lutheran, Espinoza, Fulton, and Carson come
together to shape a straightforward rule: No matter how
a State frames a program or policy, it may not operate to
exclude religious institutions on account of their religious
exercise without violating the First Amendment.
3. By the same token, a State’s religious hostility
does not become constitutional just because it becomes
more clandestine.
The Free Exercise Clause protects against more than
“facial discrimination.” Lukumi, 508 U.S. at 534. It bars
“subtle departures from neutrality,” “covert suppression
of particular religious beliefs,” and concealed
“governmental hostility.” Id. (cleaned up); see also
Masterpiece Cakeshop v. Colo. C.R. Comm’n, 584 U.S.
617, 634 (2018). So “[f]acial neutrality” does not determine
whether a law is constitutional. Lukumi, 508 U.S. at 534.
For example, a silent-on-religion policy designed to
9
“‘disrupt’ children’s thinking about sexuality and gender”
can unduly burden religion when it does not provide optouts to accommodate free exercise rights. Mahmoud v.
Taylor, 606 U.S. 522, 529, 538, 561 (2025). So courts must
“meticulously” “survey” government action to bar any
“religious gerrymanders.” Walz v. Tax Comm’n of City of
N.Y., 397 U.S. 664, 696 (1970) (Harlan, J., concurring).
Free exercise protections also extend just as strongly
to religious views held by only a minority. “[T]he
guarantee of free exercise is not limited to beliefs which
are shared by all of the members of a religious sect.”
Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707,
715-16 (1981). Regardless of whether a particular religion
finds favor in a particular community, States may not
“prefer[] some religious groups over” others, Fowler v.
Rhode Island, 345 U.S. 67, 69 (1953), “based on the content
of their religious doctrine,” Cath. Charities Bureau, Inc.
v. Wisc. Lab. & Indus. Rev. Comm’n, 605 U.S. 238, 248
(2025).
In sum, covert government hostility towards religion
violates the Constitution. And States are not off the First
Amendment hook because they let a few preferred
religious institutions walk away scot-free.
4. Free exercise principles likewise bar selectively
burdening religious exercise while leaving comparable
secular activities untouched.
A law is not generally applicable if it “prohibits
religious conduct while permitting secular conduct that
undermines the government’s asserted interests in a
similar way.” Fulton, 593 U.S. at 534. So, for instance,
government action fails to be generally applicable when
the State does not “appl[y] [a requirement] in an
evenhanded, across-the-board way.”
Kennedy v.
10
Bremerton Sch. Dist., 597 U.S. 507, 527 (2022). Similarly,
when the government “pursues [its] … interests only
against conduct motivated by religious belief,” it falls
below the general applicability standard. Lukumi, 508
U.S. at 545.
“[W]hether two activities are comparable for purposes
of the Free Exercise Clause must be judged against the
asserted government interest” justifying the regulation.
Tandon v. Newsom, 593 U.S. 61, 62 (2021). How the State
“categoriz[es]” different conduct carries little weight, as
regulatory lines may themselves be gerrymandered
against religion. Roman Cath. Diocese of Brooklyn v.
Cuomo, 592 U.S. 14, 17 (2020). So facially different types
of conduct will be comparable if they implicate the State’s
interest in similar ways. See Tandon, 593 U.S. at 63-64.
In Lukumi, for example, the Court compared fishing,
hunting, and pest extermination to ritual animal sacrifice
because they all implicated the State’s interests of
“protecting the public health and preventing cruelty to
animals.” 508 U.S. at 543-45. The State failed to meet the
general applicability standard when it “decide[d] that [its]
interests … [were more] worthy of being pursued …
against conduct with a religious motivation.” Id. at 54243.
The First Amendment is also not a sort of leastfavored-nations clause. So “[i]t is no answer that a State
treats some comparable secular [groups] or other
[religious] activit[y] as poorly as or even less favorably
than the religious exercise at issue.” Tandon, 593 U.S. at
62. That conception gets the standard backwards. The
relevant question, instead, is whether the government
treats any secular conduct better than the religious
conduct at issue when both implicate the State’s asserted
interests.
11
Discretion to grant an exemption also independently
defeats general applicability.
Any “mechanism for
granting exceptions renders a policy not generally
applicable, regardless [of] whether any exceptions have
been given.” Fulton, 593 U.S. at 537. Indeed, a law is not
generally applicable if it leaves open even the possibility
of granting “exemptions based on the circumstances
underlying each” request. Id. at 534. A government actor
exercising unfettered “discretion” provides one extreme
example of non-generally applicable action. See id. at 535.
But more bounded discretion, too, can defeat general
applicability. Id. (discussing Sherbert’s “good-cause”
discretion standard).
Altogether, general applicability demands two things:
that statutory schemes foreclose discretion to selectively
grant exemptions and that the government pursues its
interests evenhandedly—not in a way that targets religion
but passes over comparable secular conduct.
B. Despite its facial neutrality, Colorado’s
exclusion targets religion in a non-generally
applicable way.
These free exercise principles resolve this case.
Colorado has tried to repackage its religious exclusion in
antidiscrimination terms, but it is unconstitutional just the
same. Colorado has impermissibly conditioned a benefit—
participation in the universal pre-K program—on St.
Mary’s willingness to violate its faith.
The actions Colorado attacks are central to St. Mary’s
religious practice. St. Mary’s holds traditional views on
sexuality and marriage. Pet.App.313a-314a. These views
inform how the school runs its preschool and other
education programs. See Pet.App.308a-320a. Admitting
students whose families disagree with its teachings would
12
undermine its religious mission, Pet.App.240a, 272a-275a,
and create conflict within the family unit, Pet.App.316a318a. For the benefit of all students, St. Mary’s thus
admits only those who can support Catholic teachings,
particularly on these key principles. See Pet.App.240a,
Pet.App.316a-317a.
Cf. Yoder, 406 U.S. at 217-18
(explaining that, by forcing the Amish to be “expos[ed] …
to worldly influences” that “contravene[d] the basic
religious tenets and practice of the Amish faith,” the State
had offended the Amish’s religious liberty).
But Colorado won’t allow St. Mary’s to keep this
religious cohesion and take part in the universal pre-K
program. Pet.App.289a-290a. “The decision to exclude
someone from participation in a religious organization is
itself a religious decision.” McRaney v. N. Am. Mission
Bd. of the S. Baptist Convention, Inc., 157 F.4th 627, 654
(5th Cir. 2025). But Colorado purports to direct that
decision anyway. And this “forced inclusion of …
unwanted person[s]”—that is, those opposing the Catholic
faith—also undermines the ability of the church to
communicate its religious principles to the world at large.
Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000)
(addressing similar conceptions in associative-speech
context); see also, e.g., Meriwether v. Hartop, 992 F.3d
492, 516 (6th Cir. 2021) (Thapar, J.) (“[T]he application of
a nondiscrimination policy could force a person to endorse
views incompatible with his religious convictions.”).
Colorado’s
insistence
places
“unmistakable”
“pressure” on St. Mary’s to abandon its religious views on
marriage and sexuality. Sherbert, 374 U.S. at 404, 410.
Indeed, these circumstances might be better called an
“economic dragooning,” Nat’l Fed’n of Indep. Bus. v.
Sebelius, 567 U.S. 519, 582 (2012), seeing as how many
families will be unwilling to turn down the thousands of
13
dollars they’ll receive if they choose a non-Catholic
preschool instead, See Press Release, Colo. Dep’t of Early
Childhood, Saving Coloradans an Average of $6,300 Per
Year, Colorado’s Universal Preschool Program Opens
Enrollment for Upcoming 2026-27 Program Year While
Current Year Enrollment Continues (Dec. 9, 2025),
https://tinyurl.com/4zxdfjw9. Colorado might believe
these outcomes are acceptable because it thinks St.
Mary’s religious views constitute merely a choice “to
discriminate.” Pet.App.367a. But that antagonistic
characterization doesn’t license it to penalize the school.
In excluding St. Mary’s, Colorado has violated the
principles laid down in Trinity Lutheran, Espinoza,
Fulton, and Carson. St. Mary’s has the right to
participate in Colorado’s program “without having to
disavow its religious [views].” Trinity Lutheran, 582 U.S.
at 463; see also Fulton, 593 U.S. at 532. Aside from the
conflict between those views and the State’s
antidiscrimination statute, St. Mary’s is “otherwise fully
qualified” to participate. Trinity Lutheran, 582 U.S. at
462; see Pet.App.280a-282a. Though Colorado did not
have to “subsidize private [preschool],” now that it has, it
“cannot disqualify some private schools solely because”
they hold certain religious beliefs. Espinoza, 591 U.S. at
487. And although Colorado’s statute uses different
wording than Montana’s or Maine’s, the “effect is the
same: to disqualify” some disfavored religious groups.
Carson, 596 U.S. at 780 (cleaned up).
Colorado’s exclusion of St. Mary’s also discriminates
against Catholic families “whose children attend or hope
to attend” school there. Espinoza, 591 U.S. at 486; see
Pet.App.12. These families seek the same quality
preschool education Colorado promises every other family
by way of a “universal” program. But instead, they must
14
pay a hefty financial penalty or forgo the religious
cohesiveness and community that drew them to a Catholic
school in the first place. That tradeoff is no more
acceptable at the individual level than it is at the
institutional one.
So Colorado’s law, though facially neutral, does not
meet the demands of the Free Exercise Clause. See
Yoder, 406 U.S. at 220. The First Amendment protects St.
Mary’s against Colorado’s thinly veiled “governmental
hostility,” Lukumi, 508 U.S. at 534, towards its religious
beliefs about marriage and sexuality, see Pet.App.367a.
St. Mary’s does not seek a license to “discriminate,” contra
Pet.App.367a, but instead wants to “convey[] the Church’s
message and carry[] out its mission,” Our Lady of
Guadalupe Sch. v. Morrissey-Berru, 591 U.S. 732, 752
(2020) (cleaned up). To call this discrimination is itself
hostile towards religion. Religion necessarily opposes
non-sectarianism. But that Colorado views this practice
as discriminating—instead of as maintaining religious
cohesion necessary for the religious institution to
meaningfully exist at all—demonstrates its antagonism
towards St. Mary’s free exercise. That partiality becomes
even more obvious considering that Colorado views
secular schools’ discrimination based on other
characteristics as “erasing barriers to equal access caused
by social stigma.” Pet.App.39a. The First Amendment
forbids this kind of “covert suppression” of St. Mary’s
religious views. Lukumi, 508 U.S. at 534.
Colorado also cannot hide behind the cloak of general
applicability. It has already accommodated analogous
conduct from secular preschools in any number of ways.
Colorado
waives
away
prohibitions—such
as
consideration of income, race, or gender identity—for
schools that fall more in line with its preferred policy
15
views. Pet.App.8a, 35a-37a, 347a, 353a-55a. Yet, the
relevant statute treats all these characteristics
identically. Pet.App.6a (requiring preschools to “provide
eligible children an equal opportunity to enroll and receive
preschool services regardless of race, ethnicity, religious
affiliation, sexual orientation, gender identity, lack of
housing, income level, or disability” (quoting COLO. REV.
STAT. § 26.5-4-205(2)(b))). More damning still, Colorado
admits its “interest in enforcing each of the Mandate’s
protected characteristics is ‘the same.’”
Pet.App.5
(emphasis added). The implication of the State’s own
concession, then, is that it “permit[s] secular conduct that
undermines … [its] interests in a similar way.” Fulton,
593 U.S. at 534.
In holding otherwise, the Tenth Circuit confused the
standard. It concluded that “discrimination based on
sexual orientation and gender identity [and]
discrimination based on disability and income level” pose
“completely different” “barriers to equal access to
preschool education.”
Pet.App.30a-40a.
But that
conclusion derives from a sub-“categorization[]” that itself
treats secular conduct “less harshly” than comparable
religious conduct. Roman Cath. Diocese, 592 U.S. at 17.
And Colorado may not “pursue[] [its] … interests only
against conduct motivated by religious belief” without
violating the requirement of general applicability.
Lukumi, 508 U.S. at 545; see Fellowship of Christian
Athletes v. San Jose Unified Sch. Dist. Bd. of Educ., 82
F.4th 664, 687 (9th Cir. 2023). Even if Colorado did not
admit its interest in preventing each type of
discrimination was “the same,” Pet.App.5., this Court
could not blindly accept its arbitrary line-drawing.
Deference to the State’s self-serving, post-hoc rationale
would be particularly inappropriate here: That rationale
conflicts with the statute’s plain text and inherently
16
affords secular conduct leniency not given to religious
conduct.
Nor can Colorado escape constitutional scrutiny
because a few religious schools can still participate in the
program. The Tenth Circuit concluded that Smith
governed—and therefore that Colorado’s law did not
violate the First Amendment—because at least some
other “religious schools [are] welcome participants” in the
program. Pet.App.21a. That illusory distinction is wrong.
“It is no answer that a State treats some” religious activity
better than others.
Tandon, 593 U.S. at 62. “That
amounts to the [S]tate preferring some religious groups
over [St. Mary’s],” Fowler, 345 U.S. at 69—“based on the
content of their religious doctrine” on marriage and
sexuality, Cath. Charities Bureau, 605 U.S. at 248. If
anything, this state-sponsored favoritism of some
religious institutions over others only makes the law’s
constitutional problems worse.
Colorado’s discretion in applying the statute—
manifest in at least three different ways—also defeats
general applicability. See Fulton, 593 U.S. at 537. First,
in practice, Colorado exercises discretion by allowing
preschools to “set different preferences” “to help match
[them] with specific groups of students that they are
designed to serve.” Pet.App.7a. Under this preference
system, Colorado can approve a preschool’s decision to
“decline to enroll children they are matched with who do
not fit their enrollment preference”—including declining
a child based on disability status or their being “part of a
specific community.”
Pet.App.7a-9a.
Second, the
program administrator’s testimony shows that the
regulation’s final “catchall” preference permits sweeping
exceptions:
Preschools could admit only “gendernonconforming children,” or “children of color from
17
historically underserved areas,” Pet.App.353a-354a—
even though the statute bars discrimination based on race
or gender identity, Pet.App.6a. Finally, the statute
expressly permits Colorado to grant “limited time”
exceptions to the antidiscrimination requirements.
Pet.App.33a.
These record facts confirm that Colorado has
“mechanism[s] for granting exceptions.” Fulton, 593 U.S.
at 537. Indeed, Colorado is willing to grant secular
schools—but not St. Mary’s—an exception to its mandate
to maintain community cohesiveness.
At bottom, Colorado treats its nondiscrimination
mandate as “a flexible provision that allows [it] to take into
consideration all kinds of other important interests …
while nevertheless refusing to accommodate sincere
religious exercise.” Pet.23. That “renders [its] policy not
generally applicable.” Fulton, 593 U.S. at 537.
C. Colorado’s exclusion fails strict scrutiny.
Each of this Court’s free exercise precedents points the
same way: Colorado’s law must face strict scrutiny. And
it fails. Colorado’s religious-hostility-fueled policies don’t
advance “interests of the highest order.” Fulton, 593 U.S.
at 541 (cleaned up). Nor has Colorado “narrowly tailored
[its action] to achieve” its alleged interests. Id.
Colorado asserts an interest in “protecting equal
access to preschool education for Colorado children.”
Pet.App.47a.
But even a “compelling interest in
eliminating discrimination” still must yield to respect free
exercise rights. 303 Creative LLC v. Elenis, 600 U.S. 570,
590 (2023) (cleaned up). And Colorado doesn’t really take
these antidiscrimination goals seriously: It does not
pursue its equal access “objectives” for “analogous non-
18
religious conduct.” Lukumi, 508 U.S. at 546. It allows
preschools to discriminate based on income, race, and
gender identity—all in violation of the statute. See
Pet.App.8a, 35a-37a, 347a, 353a-55a.
That underinclusivity is decisive. See Lukumi, 508 U.S. at 546. “[A]
law cannot be regarded as protecting an interest of the
highest order when it leaves appreciable damage to that
supposedly vital interest unprohibited.” Id. at 547
(cleaned up).
Colorado’s goal of increasing “access to voluntary,
high-quality, universal preschool services free of charge”
suffers from a similar tailoring problem. Its decision to
oust a qualified school like St. Mary’s from the program
betrays its goal of expanding access.
Pet.App.5a.
Granting St. Mary’s an exception would “increase, not
reduce” the number of available preschool options
overall—even with any limitations in St. Mary’s
admissions policy. Fulton, 593 U.S. at 542. And its
decision to exclude St. Mary’s makes even less sense
considering Colorado’s “shortage of licensed preschools”
in the program. Pet.6. Artificially depressing the supply
of qualified preschools because of hostility towards certain
religious beliefs is not a narrowly tailored way to expand
preschool access.
Looking behind the curtain, it seems Colorado may
also intend “to help match preschools with specific groups
of students that they are designed to serve.” Pet.App.7a.
This goal of matching based on protected characteristics
directly conflicts with the statute’s plain text preventing
consideration of these same characteristics. That internal
contradiction makes it unlikely that Colorado can satisfy
strict scrutiny. See Lukumi, 508 U.S. at 546. Even if this
goal were a “commendable” one, it is “not sufficiently
coherent” or measurable “for purposes of strict scrutiny.”
19
SFFA v. Harvard, 600 U.S. 181, 214 (2023). But anyway,
Colorado’s hostility towards St. Mary’s undermines this
“best fit” goal, too. St. Mary’s wants to admit Catholic
students, and Catholic families want to attend St. Mary’s
preschools. See Pet.App.12. But Colorado “cut[s] [these]
families off from otherwise available benefits” because it
involves disfavored religious schools. Espinoza, 591 U.S.
at 486. If Colorado truly wanted to “match preschools
with specific groups of students that they are designed to
serve,” it would allow Catholic families to participate in
the program at their preferred Catholic school.
Pet.App.7a. Depriving St. Mary’s of the same autonomy
Colorado makes “available to others” undermines its aims
in a way fatal to tailoring. Fulton, 593 U.S. at 542.
These goals—universal access on the one hand and
status-based matchmaking on the other—also contradict
each other. This internal conflict suggests the stated
interests are pretextual. See Lukumi, 508 U.S. at
546. And because this internal contradiction exists, the
means that further one goal undermine the other—and
vice versa. So relying on inconsistent rationales creates
an underinclusivity problem for both interests.
Lastly any concerns about the allegedly unique harm
caused by discrimination based on sexuality, see
Pet.App.39a, are also unavailing. No parish has “any
history of a complaint from an LGBTQ family or other
person
alleging
LGBTQ-based
discrimination.”
Pet.App.306a. And “[s]uch speculation is insufficient to
satisfy strict scrutiny.” Fulton, 593 U.S. at 542. Plus, even
if someone did complain about St. Mary’s admission
practices deriving from its sincere religious beliefs,
Colorado would have to show the “harm of granting [a]
specific exemption[] to” St. Mary’s. Id. at 541. It could
not make that showing. Most other preschools could
20
accept, and may even give preferential treatment to,
applicants in those groups. Pet.App.353a-355a. When
Colorado could “direct [an applicant St. Mary’s could not
admit] to one of the more than [2,000] other [preschools]
in the [State],” it lacks a compelling interest in denying St.
Mary’s an exemption. See Fulton, 593 U.S. at 530; see also
Press Release, Colo. Governor Jared Polis, Colorado’s
Universal Preschool Program Opens Enrollment for
Upcoming 2025-26 School Year While Current Year
Enrollment
Continues
(Dec.
17,
2024),
https://tinyurl.com/52rje4ku.
Under any of Colorado’s alleged rationale, its decision
to exclude St. Mary’s fails strict scrutiny.
***
The First Amendment bars Colorado from excluding
St. Mary’s from its universal pre-K program because of its
sincerely held religious beliefs. That command applies
whether Colorado explicitly discriminates against
religion, Pet.App.21a, or whether it does so more covertly.
Colorado seeks to create a “simple” “rule”: “No churches
[with traditional views of marriage] need apply.” Trinity
Lutheran, 582 U.S. at 465. But that “rule” violates the
First Amendment.
II.
Antidiscrimination law is the latest—and
perhaps most potent—tool used to punish
unpopular religious exercise.
A. In the First Amendment context, “historical
background” matters. Masterpiece Cakeshop, 584 U.S. at
639; see also Kennedy, 597 U.S. at 536. Unfortunately,
anti-religious sentiment of the sort seen here has a
lengthy track record of infecting state action. Colorado
has just weaponized the latest iteration of that hostility.
21
Many times, this Court has corrected state attempts to
punish certain religious beliefs—more than once, in
Colorado. It should do the same here.
American history is littered with “many dramatic
clashes and confrontations between religious and political
authority.” Richard W. Garnett & Jackson C. Blais,
Religious Freedom and Recycled Tires: The Meaning
and Implications of Trinity Lutheran, 2017 CATO SUP. CT.
REV. 105, 105. Early on, those clashes typically reflected
majoritarian hostility towards disfavored religious
minorities. More recently, these disputes have arisen
when governments give preferential treatment to secular
over religious conduct. Both embody impermissible
government hostility towards religion.
To start, the Blaine amendments of the late 1800s were
“prompted by virulent prejudice against immigrants,
particularly Catholic immigrants.” Espinoza, 591 U.S. at
498 (Alito, J., concurring). These amendments typically
barred state aid to “sectarian” institutions, especially
schools. “Dictionaries [at the time] defined a ‘sectarian’ as
a member ‘of a party in religion which has separated itself
from the established church, or which holds tenets
different from those of the prevailing denomination.’” Id.
at 501 (Alito, J., concurring) (cleaned up). But “it was an
open secret that ‘sectarian’ was code for ‘Catholic.’”
Mitchell, 530 U.S. at 828 (plurality opinion). And antiCatholic laws have long sought to “impose special legal
disadvantages on Catholics because their beliefs were
feared or hated by a sufficient majority.” Garnett & Blais,
supra, at 109 n.20 (cleaned up).
Catholics weren’t the only religious group singled-out
for discriminatory treatment. The “term [sectarian] was
likewise used against Mormons and Jews.” Espinoza, 591
U.S. at 501 (Alito, J., concurring). Blaine amendments
22
proved to be a useful tool for legislatures who wanted to
“penalize a disfavored religious group.” Kyle Duncan,
Secularism’s Laws: State Blaine Amendments and
Religious Persecution, 72 FORDHAM L. REV. 493, 497
(2003). These amendments translated “intense anxiety”
about religious minorities into law. Espinoza, 591 U.S. at
500 (Alito, J., concurring) (cleaned up). And this
“sectarian” exclusion even migrated from legislative
provisions into judicial doctrine. See Comm. For Pub.
Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 77280 (1973); Meek v. Pittenger, 421 U.S. 349, 364-66 (1975),
overruled by Mitchell, 530 U.S. 793.
At times, legislative hostility towards minority faiths
became even more grotesque. “[T]he Mormons[, for
example,] were … subject to massive and brutal
persecution by state authorities.” Wagering on Religious
Liberty, 116 HARV. L. REV. 946, 949 (2003). This campaign
climaxed when an 1838 Missouri executive order
demanded that “members of the Mormon faith … be
executed or driven from the state.” Spencer T. Proffitt,
Gods Behind Bars: How Religious Liberty Has Been Sent
Directly to Jail, and How to Get Out of Jail Free, 40 ARIZ.
ST. L.J. 1401, 1421 (2008). The state also weaponized its
authority against Native Americans: Later criminal codes
directly targeted their religious exercise. The Indian
Religious Crimes Code of 1883 “established a series of
criminal offenses” intended to “stamp out Native
American religious practices.” Lee Irwin, Freedom, Law,
and Prophecy: A Brief History of Native American
Religious Resistance, 21 AM. INDIAN Q. 35, 36 (1997),
https://tinyurl.com/5685hxy6.
These
regulations
represented “a determined policy to reconstruct Native
religious in conformity with dominant … majority values.”
Id.
23
A few decades after the Blaine amendment era, state
ire turned towards Jehovah’s Witnesses. “Their refusal to
salute the flag, to perform military service, and their
insistence on carrying on a sometimes tactless campaign
of door-to-door preaching caused them to get into serious
trouble with both the public and law-enforcement
agencies.” M. JAMES PENTON, APOCALYPSE DELAYED:
THE STORY OF JEHOVAH’S WITNESSES 117 (3d ed. 2015).
Many laws of the time burdened the denomination’s
religious exercise—from permit requirements for
literature distribution, Lovell v. City of Griffin, 303 U.S.
444, 451 (1938), to license taxes on door-to-door
evangelism, Murdock v. Pennsylvania, 319 U.S. 105, 10608 (1943), to compulsory flag pledge and salute laws, W.
Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 627-29
(1943).
Some regulations explicitly targeted Jehovah’s
Witnesses. See Fowler, 345 U.S. at 69 (ordinance barring
a Jehovah’s Witness sermon in the park, but not a Catholic
mass or a Protestant service); Niemotko v. Maryland, 340
U.S. 268, 272 (1951) (permit denied because of local
authority’s “dislike for or disagreement with the
Witnesses”). Conflict between those laws and the sect’s
beliefs led to the arrest of over 18,000 Jehovah’s Witnesses
during a twenty-year period. M. JAMES PENTON, supra,
at 117. This Court was compelled to step in. See, e.g.,
Barnette, 319 U.S. at 642; Fowler, 345 U.S. at 69-70.
Later on, “[l]and use regulation bec[a]me the most
widespread obstacle to the free exercise of religion.”
Douglas Laycock, State RFRAs and Land Use
Regulation, 32 U.C. DAVIS L. REV. 755, 783 (1999). Local
zoning authorities targeted minority religions in
particular—both “on the face of zoning codes” and in “the
highly individualized and discretionary” permitting
24
processes. 146 Cong. Rec. S7774 (daily ed. July 27, 2000)
(joint statement of Sens. Hatch and Kennedy),
https://tinyurl.com/3dt6jskh; see Laycock, State RFRAs,
supra, at 771 (“Religious groups accounting for only 9% of
the population account for 50% of the reported litigation
involving [discriminatory zoning decisions.]”). Under this
discriminatory regime, “places of secular assembly [were]
often not subject to the same rules.” Laycock, State
RFRAs, supra, at 776. So, for example, “banquet halls,
clubs, [or] community centers … [were] often permitted
as of right in zones where churches require a special use
permit.” Id. Or these secular buildings were “permitted
on special use permit where churches [were] wholly
excluded.” Id.
Worse still, this religious discrimination was often
“covert.” 146 Cong. Rec. at S7775. It “lurk[ed] behind
such vague and universally applicable reasons as traffic,
aesthetics, or ‘not [being] consistent with the city’s land
use plan.’” Id. at S7774. Although Congress eventually
stepped in to protect religious minorities from
authoritarian local governments, covert discrimination
became a new pathway for anti-religious animus. See 42
U.S.C. § 2000cc et seq.
Fast forward to COVID, when governments again
“single[d] out houses of worship for especially harsh
treatment.” Roman Cath. Diocese, 592 U.S. at 17. New
York, for example, exempted secular businesses from
capacity limits, while subjecting churches to strict limits
of ten or fifteen people—regardless of building size or
precautions in place. Id. California did the same. Its
regulations “treat[ed] some comparable secular activities
[significantly] more favorably than at-home religious
exercise.” Tandon, 593 U.S. at 63. Across the country,
“[a]t the flick of a pen, [States] … asserted the right to
25
privilege restaurants, marijuana dispensaries, and casinos
over churches, mosques, and temples.” Roman Cath.
Diocese, 592 U.S. at 22 (Gorsuch, J., concurring).
Other cases further highlight the ongoing pattern of
government preference for secular activity over religious
exercise. See Rosenberger v. Rector & Visitors of Univ. of
Va., 515 U.S. 819, 850 (1995) (O’Connor, J., concurring)
(university refusing to fund a student journal that shared
a Christian message but funding a “magazine that …
targeted Christianity as a subject of satire”); Kennedy,
597 U.S. at 527 (school imposing “bespoke
requirement[s]” on religious exercise but not similar
secular conduct); Lukumi, 508 U.S. at 533-40 (city
outlawing religious conduct but not analogous secular
conduct). Nothing suggests that opponents of religious
practices are letting up anytime soon.
All in all, this history teaches a simple lesson: Even
after legislative or judicial correction, adversaries of
religion always find new ways to punish protected
religious exercise.
B. Legislatures know they may no longer get away
with explicitly excluding religious groups from public
benefit programs—so they have pivoted to disqualifying
them using antidiscrimination laws. Though not an
entirely new phenomenon, this strategy of covert religious
discrimination is gaining traction. See, e.g., John W.
Whitehead, The Conservative Supreme Court and the
Demise of the Free Exercise of Religion, 7 TEMP. POL. &
CIV. RTS. L. REV. 1, 1 (1997) (attributing a weakening of
minority religious protections to “deference to facially
neutral statutes” and “an unwillingness to undertake caseby-case analysis”). And as America experiences a “shift
[in] cultural views about antidiscrimination norms,” the
“growing strength” of those norms could continue to put
26
“increased pressure on the free exercise right.” John D.
Inazu, More Is More: Strengthening Free Exercise,
Speech, and Association, 99 MINN. L. REV. 485, 522
(2014). This Court should shut that backdoor gateway to
religious discrimination.
Post-Carson, opponents of religion were scrambling.
They realized that “Carson created an impossible
situation for [S]tates that do not want to fund religious
private schools.” Lindsey M. Wood, Free Exercise or
Forced Establishment? Why the Supreme Court Got
Carson v. Makin Wrong and What Vermont Can Do
About It, 49 VT. L. REV. 424, 454 (2025). Indeed, they
ruminated on how “compliance with Carson” was
something they could “balance” with their “tradition” of
excluding religious schools from government programs.
Id. at 446. Cases that duly respected free exercise rights
were labeled as presenting “significant reasons for
concern,” Katie Eyer, Anti-Transgender Constitutional
Law, 77 VAND. L. REV. 1113, 1176 (2024), and merely a
product of “Christian victimhood,” Hannah Bailey, A New
Minority in the Courts: How the Rhetoric of Christian
Victimhood and the Supreme Court Are Transforming
the Free Exercise Clause, 73 SYRACUSE L. REV. 199, 239
(2023).
These proponents encouraged legislatures not to
“abandon creativity” in the effort to stomp out religion.
Derek W. Black, Religion, Discrimination, and the
Future of Public Education, 13 UC IRVINE L. REV. 805,
830 (2023). “[T]he point [was] simply to articulate what
the [S]tate is buying and thereby exclude certain things it
does not want to buy: religion, conspiracy theory, and antiscience.” Id. States and scholars alike understand the
current state of affairs: The “existing doctrine poses no
limitation on [S]tates’ ability” to oust religious schools
27
from public programs by conditioning participation on
strict adherence to “non-discrimination principles.” Id.
(emphasis added). So any State can circumvent the First
Amendment by “more carefully” “craft[ing] their
programs” to “indirectly limit religious instruction
through more general prescriptions.” Id. at 828.
This latest strategy proves particularly dangerous
because it’s facially neutral but inevitably disqualifying
for religion.
Unduly rigid antidiscrimination
requirements unavoidably penalize much religious
exercise for two reasons.
First, the religious discrimination component of
antidiscrimination law asymmetrically burdens religion.
These provisions have many valid applications: Indeed,
most groups have no need to exclude someone based on
religion. But all types of organizations, religious ones
included, recognize that admitting dissidents often
“impede[s] the organization’s ability to engage in [its First
Amendment] protected activities.” Roberts v. U.S.
Jaycees, 468 U.S. 609, 627 (1984). That goal of institutional
cohesiveness, though, looks slightly different inside
versus outside religion. Maintaining cohesion within
religion requires “discriminating” based on religious
ideology while maintaining cohesion within secular groups
requires “discriminating” based on some other secular
ideology. Antidiscrimination laws tend to prohibit only
the former. So governments hostile to religion can quash
First Amendment protections for religious groups while
leaving secular groups’ same rights unscathed.
The sexual discrimination part of antidiscrimination
law poses parallel problems. It comes as no surprise that
a “gap … has emerged between the state’s sexual ethics
and religious norms.” Helen M. Alvaré, Religious
Freedom As Freedom, 50 B.Y.U. L. REV. 1191, 1192
28
(2025). As with the generally protected characteristic of
religion, many groups lack a legitimate reason to exclude
someone based on sexual orientation or gender identity.
But religious groups have a non-discriminatory, FirstAmendment-protected reason for making membership
decisions on this basis: maintaining their core principles of
“faith and doctrine without government intrusion.” Our
Lady of Guadalupe, 591 U.S. at 746 (cleaned up). So here,
too, antagonistic legislatures can apply gender or
sexuality-based components of nondiscrimination law in
technically evenhanded ways that, practically speaking,
only burden religion.
This asymmetry creates the perfect cover for
governments hostile to religion.
On constitutional
doctrine, Carson addressed explicit burdens—leaving
ambiguity about covert exclusions. And on the facts,
antidiscrimination law poses unique burdens to religion
that it does not pose to secular groups. Together, these
principles invite hostile legislatures to work around free
exercise protections by excluding covertly in ways they
can no longer do overtly. In the few years since Carson,
at least four States have pursued this alternate
discriminatory strategy.
A few examples paint the picture.
Maine, as before, portrays facial constitutional
compliance while still excluding disfavored religious
exercise. While Carson was still pending before this
Court, Maine modified its tuition conditions to exclude
religious schools in a new way. L.D. 1688, 130th Leg., 1st
Spec. Sess. (Me. 2021), https://tinyurl.com/3fstyva8. It
subjected all private schools to the Maine Human Rights
Act, 5 M.R.S. § 4553(2-A); altered its definition of
“educational discrimination” to include the category of
religion, so that a Catholic school, for example, couldn’t
29
prefer Catholic students for admission or financial aid, id.
§ 4602(1)(A), (D), (E); added a “religious expression” rule
that requires schools to allow oppositional religious views
that undermine its religious message, id. § 4602(5)(D); and
repealed a religious exemption that permitted schools to
handle issues related to gender and sexuality in a manner
consistent with their faith, An Act to Extend Civil Rights
Protections to All People Regardless of Sexual
Orientation, ch. 10, § 21, 2005 Me. Laws 70, 76 (2005),
https://tinyurl.com/5at4km62, repealed by An Act to
Improve Consistency in Terminology and within the
Maine Human Rights Act, ch. 366, § 19, 2021 Me. Laws
761, 767 (2021), https://tinyurl.com/37tybkc5. So before
this Court could correct its last unconstitutional effort, the
State made sure it had a new way to accomplish the same
goal. A federal district court later found that even this
new iteration of the law was subject to strict scrutiny. St.
Dominic Acad. v. Makin, 744 F. Supp. 3d 43, 73 (D. Me.
2024). But it concluded at the preliminary-injunction
stage that the law was likely to satisfy strict scrutiny
because, among other things, Catholic schools were still
free to conduct morning prayers and teach from a Catholic
perspective. Id. at 79. So even strict scrutiny became not
so strict.
Vermont likewise is taking advantage of this purported
constitutional loophole. It runs a similar tuition program
to Maine. Wood, supra, at 446-47. After Carson, then
Secretary of Education issued a letter to superintendents
instructing they could no longer “deny tuition payments
to religious approved independent schools.” Letter from
Daniel M. French, Vermont Sec’y of Educ., to
Superintendents, on Tuition Payments to ReligiouslyAffiliated Approved Independent Schools, at 1 (Sept. 13,
2022), https://tinyurl.com/mr6r6x2h. But in the same
breath, the Secretary reminded superintendents that—to
30
be approved—schools may not “discriminate” based on
religion, sexual orientation, or gender identity. 22-004 VT.
CODE R. § 2223.2, https://tinyurl.com/5ass3se9
(Nondiscrimination
Requirement
for
Approved
Independent Schools). So as in Maine, religious schools
receiving public funds must admit religious dissenters and
not hold traditional views of marriage and sexuality. The
message from local officials was clear: Apply facially
neutral criteria to continue discriminating against
religious schools.
Vermont is capitalizing on the perceived doctrinal gap
in even more covert ways, too.
The State felt
uncomfortable that “religious schools in Vermont ha[d]
been receiving an increasing amount of money through
[its] school tuitioning program.” Corey McDonald,
Vermont’s new education law signals an end to state
funding for religious schools, VTDIGGER (Aug. 20, 2025),
https://tinyurl.com/3r5mazhx. So the legislature passed
Act 73, which imposes three “neutral” criteria for public
funding eligibility. Id. But these three criteria—a funding
floor, a geographic restriction, and class-size minimums—
work in concert to ensure no religious school can qualify
for public funds. So all fifteen religious schools that
became eligible post-Carson have once more been exiled.
Mid Vt. Christian Sch. v. Saunders, No. 2:23-CV-652,
2026 WL 1296339, at *17 (D. Vt. May 12, 2026). The State
has, yet again, “gerrymander[ed] out … all religious
schools from public benefits.” Associated Press, Vermont
Christian School Challenges State’s New Education
Funding Law in Court, U.S. NEWS (Nov. 5, 2025),
https://tinyurl.com/mprpt2ch. And the district court—
after distinguishing away Trinity Lutheran and its
successors, and then complaining that this Court had
(apparently) provided “very little authoritative guidance”
on the question—refused a preliminary injunction against
31
enforcement of the law. Mid Vt. Christian, 2026 WL
1296339, at *10-17.
Minnesota has also tried to exploit this purported
doctrinal silence. Minnesota administers a similar tuition
reimbursement program at the college level. Loe v. Jett,
796 F. Supp. 3d 541, 550 (D. Minn. 2025). But in 2023, the
legislature amended the definition of “eligible
institutions,” to impose “two new requirements on
participating institutions”: “(1) the Faith Statement Ban
and (2) the Nondiscrimination Requirement.” Id. As one
might guess, in application, these requirements forced
religious schools to admit religious dissidents and disavow
their beliefs on marriage and sexuality to participate in
the program. So “in practical terms,” the policies
burdened religious groups and “almost no others.”
Lukumi, 508 U.S. at 536. This time, at least, a federal
district court found the law unconstitutional and ordered
the 2023 amendment to be “stricken.” Loe, 796 F. Supp.
3d at 572-73.
And Maryland, as well, has learned it can flout
Carson—and free exercise protections generally.
“Maryland lawmakers enacted a bill that, like Maine’s,
prohibits any nonpublic primary or secondary school that
receives state funds from discriminating based on sexual
orientation or gender identity.” Aaron Tang, Who’s
Afraid of Carson v. Makin?, 132 YALE L.J. FORUM 504,
527 (2022) (cleaned up); see H.B. 850, 2022 Leg., Reg.
Sess. (Md. 2022) (passed May 29, 2022). Here, too,
legislation unconstitutionally “penalize[s]” religious
schools and families for not surrendering their unpopular
beliefs. Sherbert, 374 U.S. at 406. And Maryland has more
recently debated extending these prohibitions even to
religious schools that receive no public funding at all. See
Colleen Hroncich, Curtailing Religious Liberties at
32
Maryland Private Schools Is No April Fool’s Day Prank,
CATO INST.: CATO AT LIBERTY (Mar. 31, 2026 3:22 PM),
https://tinyurl.com/mpzzs22d.
The current doctrine, as embraced by some lower
courts, thus encourages unfriendly legislatures to more
discreetly punish religious people for their unpopular
viewpoints. Antagonistic legislatures need pass an only
superficially neutral and purportedly exceptionless
nondiscrimination provision. Then they can wield the
provision so that “the burden of the ordinance, in practical
terms, falls on [certain religious] adherents [and] almost
no others.” Lukumi, 508 U.S. at 536. This strategy
renders Carson “essentially meaningless.” Carson, 596
U.S. at 784.
The Tenth Circuit hailed Colorado’s program as “a
model example” for States to follow. Pet.App.42a. In all
the wrong ways, it is. This Court should make clear that
the First Amendment doesn’t permit that workaround.
III.
Finding covertly discriminatory laws to be
constitutionally permissible would threaten the
system of public-religious partnerships.
It also helps to be clear-eyed about the broader
practical consequences of Colorado’s methods. Religious
groups serve as indispensable partners in administering
government-funded social services. That’s to be expected,
considering how “[t]he nonsectarian aims of government
and the interests of religious groups often overlap.” Tex.
Monthly, Inc. v. Bullock, 489 U.S. 1, 10 (1989). But if the
government can reduce free exercise protections to a
“simple semantic exercise,” Carson, 596 U.S. at 784
(cleaned up), then this mutually beneficial relationship will
suffer—and in contexts well beyond education.
33
Across the country, religious organizations rely on
government funding to run all types of programs.
Religious groups help States and the federal government
in running soup kitchens, food pantries, homeless
shelters, transitional housing, substance abuse programs,
adoption agencies, and more. See Fulton, 593 U.S. at 52832; Cath. Charities, 605 U.S. at 243-44; Jenny Ortman,
How is the Salvation Army Funded?, WAR CRY,
https://tinyurl.com/mwnf36sf (last visited June 30, 2026);
Volunteers of America, FORBES, https://tinyurl.com/
4ms2dnw3 (last visited June 30, 2026); Cooperative
Agreement between HHS and Lutheran Immigration
and
Refugee
Services
Inc,
USASPENDING,
https://tinyurl.com/2hwwesxt (last visited June 30, 2026).
The scale of this service is staggering. Catholic Charities
alone served more than 28 million meals, provided basic
needs and emergency services to 2.8 million people, and
furnished 2.8 million nights of emergency shelter in a
single year. CATHOLIC CHARITIES USA, PATHWAYS
FORWARD: 2024 ANNUAL REPORT 18 (2024),
https://tinyurl.com/bddrxcec.
Faith-based organizations are similarly central to
disaster relief. “About 80 percent of all [disaster] recovery
happens because of nonprofits, and the majority of them
are faith-based.” Faith groups provide the bulk of
disaster recovery, in coordination with FEMA,
RELIGION
NEWS
SERV.
(Sept.
11,
2017),
https://tinyurl.com/59d7vyen. FEMA cannot do its work
“without the cooperation of faith-based nonprofit
organizations and churches.” Id.; see also Voluntary,
Faith-based and Non-Governmental Organizations Help
Communities After Severe Winter Weather, FEMA (last
updated Feb. 3, 2026), https://tinyurl.com/ypzkjsvu.
34
Likewise, in achieving social welfare goals, the
government and religious groups work in a symbiotic
relationship. For example, approximately 35-40% of
Catholic Charities funding comes from the government.
Brief of Catholic Charities USA as Amicus Curiae in
Support of Petitioner at 9 n.5, Catholic Charities Bureau,
Inc. v. Wisc. Labor & Industry Review Commission, No.
24-154 (U.S. Feb. 3, 2025). And in just one year, Lutheran
Immigration and Refugee Services received over $220
million in federal government grants—representing about
96% of its total funding. LUTHERAN IMMIGRATION AND
REFUGEE SERVICE, INC, CONSOLIDATED FINANCIAL
STATEMENTS AND INDEPENDENT AUDITOR’S REPORT 4
(2023), https://tinyurl.com/yjpd47um. In return, faithbased projects have produced positive results for their
communities. See, e.g., Mark J. DeHaven, et al., Health
Programs in Faith-Based Organizations: Are They
Effective?, 94 AM. J. PUB. HEALTH 1030, 1033 (2004).
This partnership is no modern innovation. Cooperation
between government and religious institutions in meeting
social needs traces to the Founding itself. The same
Congress that drafted the Religion Clauses contemplated
that the government would encourage religion and
education alike in the Northwest Ordinance.
See
NORTHWEST ORDINANCE OF 1787, art. III. And in many
other ways, “religious organizations have long played a
central role in social service provision and civil society
more broadly in the United States.” Lance D. Laird &
Wendy Cadge, Negotiating Ambivalence: The Social
Power
of
Muslim
Community-Based
Health
Organizations in America, 33 POLAR: POL. & LEGAL
ANTHROPOLOGY REV. 225, 228 (2010). What Colorado
attacks, then, is not some recent or constitutionally
suspect entanglement, but a tradition as old as the
Republic. And the modern stakes have only grown: As
35
the partnership has expanded, so has the number of
vulnerable people whose access to food, shelter, and care
now depends on whether religious providers may serve on
equal terms. Excluding religious organizations from
government programs would thus not merely burden
those groups; it would dismantle the system on which
millions of vulnerable Americans depend.
Yet if this Court blesses Colorado’s discriminatory
strategy, then States could use the same covert tactic—
applying “neutral” antidiscrimination laws to oust
religious organizations—in all these areas, too. Though
Colorado insists this forecast is “conjur[ing] a crisis where
none exists,” BIO.32, some States have already begun
down this path. Oregon, for instance, stripped a Christian
youth ministry of grants serving at-risk teens for the sole
reason that it hires coreligionists. See Youth 71Five
Ministries v. Williams, 160 F.4th 964, 975 (9th Cir. 2025).
Multiply Colorado’s logic across the country and faithbased organizations—and the millions who rely on them—
are pushed out of the public square one ‘neutral’ rule at a
time. The First Amendment forbids States from
dismantling that partnership—and circumventing free
exercise protections—through a semantic sleight of hand.
CONCLUSION
The Court should reverse.
36
Respectfully submitted.
JOHN B. MCCUSKEY
Attorney General
OFFICE OF THE
WEST VIRGINIA
ATTORNEY GENERAL
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25305
mwilliams@wvago.gov
(304) 558-2021
MICHAEL R. WILLIAMS
Solicitor General
Counsel of Record
EMILY C. AHLSTROM*
Assistant Solicitor
General
*admitted in the District of Columbia;
practicing under supervision of
West Virginia attorneys
Counsel for Amicus Curiae State of West Virginia
37
ADDITIONAL LEGAL
REPRESENTATIVES OF THE STATES
STEVE MARSHALL
Attorney General
State of Alabama
KRIS KOBACH
Attorney General
State of Kansas
CORI MILLS
Acting Attorney General
State of Alaska
RUSSELL COLEMAN
Attorney General
State of Kentucky
TIM GRIFFIN
Attorney General
State of Arkansas
LIZ MURRILL
Attorney General
State of Louisiana
JAMES UTHMEIER
Attorney General
State of Florida
CATHERINE HANAWAY
Attorney General
State of Missouri
CHRIS CARR
Attorney General
State of Georgia
AUSTIN KNUDSEN
Attorney General
State of Montana
RAÚL LABRADOR
Attorney General
State of Idaho
MICHAEL T. HILGERS
Attorney General
State of Nebraska
BRENNA BIRD
Attorney General
State of Iowa
DREW WRIGLEY
Attorney General
State of North Dakota
38
GENTNER DRUMMOND
Attorney General
State of Oklahoma
ALAN WILSON
Attorney General
State of South Carolina
MARTY JACKLEY
Attorney General
State of South Dakota
KEN PAXTON
Attorney General
State of Texas
DEREK BROWN
Attorney General
State of Utah
KEITH KAUTZ
Attorney General
State of Wyoming
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