Colorado administers a universal preschool program (UPK) that offers free preschool for four-year-olds statewide. Private preschools that participate in the voluntary program—whether secular or religious—receive taxpayer funds to cover the costs of educating these students. To participate, eligible preschools must abide by the state program’s nondiscrimination policy, which requires that preschools not discriminate against either children or parents based on, among other traits, sexual orientation or gender identity. This requirement applies to all preschools participating in Colorado’s UPK program, and there is no pathway for any preschool to be exempted from the program’s ban on discrimination based on sexual orientation or gender identity.

Two Catholic parishes that run (or ran) a preschool filed suit, along with the Archdiocese of Denver and two parents with preschool-age children. They argued that Colorado’s refusal to exempt them from the UPK program’s nondiscrimination policy violates the First Amendment’s Free Exercise Clause by excluding preschools and families from receiving state benefits because of their religion. The U.S. Court of Appeals for the Tenth Circuit upheld the Colorado program.  The Supreme Court agreed to hear the case, and CAC filed an amici curiae brief on behalf of First Amendment scholars in support of Colorado.

Our brief makes two principal points. First, it argues that Founding-era history regarding the free exercise of religion does not support the petitioners’ claim that they are entitled to an exemption from a neutral and generally applicable civil law. Several Founding-era state constitutions included provisions that protected the free exercise of religion but also made clear that individuals were not permitted to violate the peace and safety of other citizens in the exercise of their religion. Further, Founding-era congressional debates support the view that the Free Exercise Clause was not understood to have conferred a broad religious exemption from compliance with civil laws.

Second, the brief explains why ruling for petitioners would require the Court to depart from decades of precedent, including Employment Division v. Smith and cases both before and after it. Pre-Smith precedent made clear that the government has both a compelling interest in eradicating discrimination and broad authority to conduct its internal affairs without conforming to every individual’s religious views. Smith itself held that where “prohibiting or burdening the free exercise of religion ‘is not the object [of a law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.’” And no case since Smith has suggested that neutral and generally applicable policies like Colorado’s nondiscrimination requirement must yield to requests for religious exemptions. Under the Court’s precedents, when “followers of a particular sect enter into commercial activity as a matter of choice”—like running a preschool that seeks to join Colorado’s UPK program—“the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” Taken together, this body of precedent leads to the conclusion that the petitioners have no right to participate in voluntary state-funded programs without complying with the government’s nondiscrimination policy for all participants.