Summary of facts: Colorado passed legislation that established a Universal Preschool Program (UPK). A section of the UPK requires all preschools receiving state funds to sign a nondiscrimination agreement. The Archdiocese of Denver, two Catholic parishes, and two parents of preschool-age children sued the state in federal court, arguing that this requirement violates their First Amendment rights insofar as it serves as a device for excluding faith-based providers from participating in the UPK. The district court found that the nondiscrimination requirement did not run afoul of the First Amendment, and the plaintiffs appealed to the U.S. Appeals Court for the Tenth Circuit. The appeals court upheld the state’s discriminatory exclusion and praised Colorado’s gerrymandered regime as a “model” and an “example” for other states to follow. The parish asked the U.S. Supreme Court to review the case and the Court agreed to do so.

RFI’s position: The government may not exclude religious institutions from benefits that it grants to others, and it may not sidestep the Constitution through the supposedly neutral device of nondiscrimination laws. In light of the Supreme Court’s line of cases prohibiting state discrimination on the basis of religion, Colorado’s policy clearly violates the First Amendment.

Read the brief here.