The Freedom From Religion Foundation has filed a friend-of-the-court brief before the U.S. Supreme Court to refute a specious argument by a Catholic church that seeks to discriminate in a publicly funded preschool program.

Colorado voters overwhelmingly approved creating a fund for a statewide, voluntary, universal preschool program in 2020. In 2022, the state adopted the Early Childhood Act, which established rules for the program, including a nondiscrimination requirement. St. Mary Catholic Parish in Littleton, Colo., is arguing that the nondiscrimination requirement “excludes” it from the program because it forbids discrimination against LGBTQ+ 4-year-olds or 4-year-olds with LGBTQ+ parents in accordance with Catholic doctrine. The church contends that the nondiscrimination requirement is not a neutral and generally applicable law because preschools are allowed to prioritize seats for children with disabilities and low-income children. This, they say, is an exemption to the requirement that undermines the state’s nondiscrimination interests comparable to their desire to discriminate against LGBTQ+ parents and children. The Trump administration has filed a brief backing the church.

FFRF asserts that the church’s argument fundamentally and deliberately misconstrues disability and income nondiscrimination. Nondiscrimination law reflects the reality that to treat people with disabilities and those who are low-income exactly the same as others often perpetuates inequality rather than resolving it. Ensuring actual equality for people with disabilities and those who are low-income is not an “exemption” from nondiscrimination requirements, but instead is fully aligned with the legal landscape.

“To argue that ensuring equality for preschool students with disabilities or students whose families are low-income is comparable to LGBTQ+ discrimination is like comparing apples and durians,” FFRF’s brief states. “One is a popular air freshener scent while the other would quickly empty a room.”

FFRF’s brief points out that mandating religious exemptions whenever any secular exemption is allowed would create a chaotic system and would require lawmaking to a degree that legislatures are not prepared to handle. The First Amendment’s Free Exercise Clause does not give an individual the ability to avoid compliance with a “valid and neutral law of general applicability.” The fact that Colorado allows preschools to prioritize serving low-income preschoolers and preschoolers with disabilities does not undermine Colorado’s interests in nondiscrimination.

“Americans with disabilities have fought long and hard to be able to participate as full members of society,” FFRF’s brief asserts. “Petitioners’ argument threatens to callously use those efforts towards inclusion to instead nullify anti-discrimination laws across the country.”

States have historically required nondiscrimination requirements for private organizations to participate in public funding programs. The petitioners complain that the nondiscrimination requirement at issue in this legislation was “targeted” to burden their religion. In reality, most public funding programs have strings attached to ensure they achieve their goals.

There is another fundamental problem with the petitioners’approach. People acting in bad faith use religion as a cloak. Questionable religious exemption claims are still asserted against laws across the country. In 2019, a religious preschool argued that the ministerial exception should apply to its teachers in response to an action filed by California to require the preschool to provide its teachers with rest breaks, meal breaks and overtime pay. Religious exemption claims have been made in the last 20 years against such things as minimum wage laws, workplace harassment laws, laws prohibiting discrimination against pregnant women, laws providing for evolution-based science education, and even the crimes of kidnapping, sexual assault and corporal punishment, among others.

For these reasons, the state/church watchdog maintains in its amicus brief that the petitioners’ arguments should be rejected and that the U.S. Supreme Court should affirm the decision of the 10th U.S. Circuit Court of Appeals.

“The Supreme Court should put a stop to improper religious discrimination claims that are untethered from reality,” says FFRF Legal Director Patrick Elliott. “If churches want public money, they have to follow the same rules as everyone else.”

The Supreme Court will hear oral arguments in the case on Nov. 3.

Amicus curiae Freedom From Religion Foundation (FFRF) is the largest national association of freethinkers, representing atheists, agnostics, and others who form their opinions about religion based on reason, rather than faith, tradition, or authority. Its two primary purposes are to educate the public about nontheism and to defend the constitutional separation between state and church. FFRF and its members are concerned that religious exemptions within government-funded programs would allow believers to discriminate and inflict harm on others in violation of fundamental civil rights protections.

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