All 21 states that backed the Catholic preschools are in §25F. Of the 19 that backed Colorado, two are.

Two weeks ago we wrote that the Supreme Court had set argument for November 3 in St. Mary Catholic Parish in Littleton, Colorado v. Roy, No. 25-581, and that forty-three members of Congress had told the Court the case will decide whether a participating state can use nondiscrimination conditions to keep religious schools out of the Education Freedom Tax Credit (also called the Federal Scholarship Tax Credit, ECCA, or §25F). Merits briefing has now closed. Colorado filed its brief on August 17, and twenty-five amicus briefs supporting it landed on August 21 and 24. Twenty-nine had already come in on the other side. Two of the fifty-four are filed by states, and reading them next to the federal participation roster produces a map worth putting on the record.

The first was filed on July 2 by West Virginia and twenty other states, supporting the parishes. Its argument is that a rule can target religion without saying so, that Colorado’s universal preschool nondiscrimination requirement is one such rule, and that treating covertly discriminatory laws as constitutionally permissible “would threaten the system of public-religious partnerships.” The signatories are West Virginia, Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Iowa, Kansas, Kentucky, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming. Every one of those twenty-one states is on the IRS §25F participation roster for 2027. Not most of them. All of them.

The second was filed on August 24 by Massachusetts and Minnesota, joined by sixteen other states and the District of Columbia, supporting Colorado. Their argument is about administrative machinery rather than religion. Almost every state runs at least some programs through a “mixed-delivery” model, meaning private providers deliver a public service, and states say they have “a strong interest in holding providers to minimum standards,” including protections against discrimination. Their warning is that the parishes’ reading of Carson v. Makin “would require states to rethink how, and even whether, they could continue to partner with private providers while still enforcing minimum standards.” The signatories are Massachusetts, Minnesota, California, Delaware, the District of Columbia, Hawai‘i, Illinois, Maine, Maryland, Michigan, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, and Washington.

Line those two lists up against the roster and the overlap is close to total. Twenty-one of the thirty participating states signed the brief arguing that states may not use neutral-looking conditions to exclude religious providers. Of the nineteen jurisdictions on the other side, seventeen are outside the program: four have declined outright (Minnesota, Hawaii, New Mexico, Oregon), twelve are undecided, and New York has announced intent without completing a filing. Two things keep this from being a simple partisan tally. These briefs are signed by attorneys general, who are separately elected and in several of these states belong to a different party than the governor. And neither state brief mentions §25F at all; both argue the doctrine, and it was the congressional brief in July that connected the doctrine to the credit.

The two exceptions are the interesting part. Nevada is on the roster because Gov. Joe Lombardo, a Republican, filed the advance election; its attorney general, Aaron Ford, a Democrat, signed the brief defending state conditioning power. Virginia is on the roster because Glenn Youngkin filed days before leaving office, which makes participation something Gov. Abigail Spanberger inherits and decides whether to renew; its attorney general, Jay Jones, signed as well. Neither signature is a withdrawal from the credit, and neither state has moved to leave it. What they show is that the authority these attorneys general are defending, the power to attach conditions to a privately delivered public program, is not one that only non-participating states want to keep.

Colorado itself makes the same point from the other direction, and it is the clearest evidence that these are two separate questions. Colorado opted into §25F under Gov. Jared Polis in December 2025, and it is the respondent here defending its preschool rule. It is also the state whose legislature killed HB26-1292 in committee, 11-0, the bill that would have carried conditions of this kind into K-12 and into its SGO designations. A state can defend its authority to set conditions in one program and decline to use that authority in another. So far Colorado has done exactly that, and only Vermont has written SGO conditions into statute, in a state that has not completed participation.

For anyone standing up an organization, nothing filed in August changes a single federal requirement. §25F still asks for 501(c)(3) status, scholarships for at least ten students who do not all attend the same school, and at least 90% of income spent on scholarships, and none of that is before the Court. What is before the Court is how much room a state has to add its own terms before it puts an organization on the list it sends Treasury, the question we have tracked as whether §25F is a federal floor or a federal ceiling. The practical read is unchanged and, if anything, clearer: the states most likely to write restrictive conditions are overwhelmingly the states that have not opted in, and the twenty-one that have opted in and filed are on record against that approach. Work through formation with the free SGO builder, check your state on the participation map, and see who else is organizing in the SGO directory.

Argument is November 3, eight weeks before the credit takes effect, and the Court posts live audio the same morning. A decision is likely by the end of June 2027, so §25F will run its entire first year before the answer arrives.