Against religious conduct released and stated in violation of the free exercise clause under Trinity Lutheran. The Montana Supreme Court disagrees and that court held boring schools did not violate the federal constitution. This board should reverse that judgment. Even respondents now concede that excluding Religious Schools from the program is unconstitutional they are viewed that the court avoided this discrimination by invalidating the entire program. This is wrong. The only reason the court invalidated the program was because it included Religious Schools and the courts remedy did not cure its discriminatory judgment nor should the remedy shielded judgment from review. Petitioners brought this lawsuit because they were denied scholarships based on religion and they are still being denied scholarships based on religion. If the court had shut down the program because it included muslim schools or africanamerican schools, theres no question that would be unconstitutional. We ask you to reverse. Respondents argue in the alternative that the law allows them to exclude schools and this case falls within the play in joint but that would allow the exception to follow the rule as Trinity Lutheran made clear, the rule is religious neutrality and lost only a narrow exception. We argue the exceptionthat proves the rule. In Trinity Lutheran. First questions about article trend these parents are treated no differently than parents of children who are going to receive, to private schools. So where is the harm . Where a differential is challenged , the court expecting the state law to level or level down . So these are the parents of children going to secular private schools, how are you . The Montana Supreme Court lacks the necessary predicate for leveling up or leveling down because they got the federal Supreme Court question wrong. Butforgetting that question wrong , we would never have moved on to the issue of remedying that problem because its the essential constitutional problem. Theres another serious problem and thats the parents are not taxpayers, taxpayers are the people who contribute to the hidden scholarship organizations and this court has held that there is no standing to challenge somebody elses tax status. Seems to me that the courts decision in Eastern Kentucky is very close to this one when the court said these hospitals are not providing services to you but you are not the taxpayer and you cant complain about tax treatment ofsomeone else. So how do you distinguish these from kentucky . Your honor, here was enthralled is a Scholarship Program and the Scholarship Programs intended beneficiary are the parents like our clients who are enabled to exercise theirconstitutional right. Its contingent on the stack tax status of someone else. Your honor its because the Montana Supreme Court has extended their blame amendment to include scholarships that are generated by the giving of tax credits. Is there any case weve ever had where weve recognized a tax party who wasnt either the taxpayer or the direct recipient of the taxes. Benefits of the taxes, so here the parents, not just art the taxpayer, theyre not the schools that we see, that received the money. Neither are they guaranteed receipt of the money. We are told that theres less money within applicants so there are three levels removed and what other case can you cite for me we permitted such a removed party . To have standing. Your honor, i dont think weve had a state constitutional provision ever be applied in such a. It doesnt matter, we had a case involving schools that discriminate and weve said that those schools, that taxpayers, not taxpayers, that individuals who feel affected by that discrimination dont have standing. Cause theyre not people, theyre not the taxpayers. And theyre not the recipient of the discrimination directly so im having a problem understanding how you have standing either for the taxpayer or for the schools to receivethe money. And why, you have a lot of contingencies. Other than that taxpayers wont get the hundred 50 without the tax credit. At the school willactually pick them. And that even if picked in the past that they will be picked in the future. It seems a high level of contingencies. So you mentioned one case that comes close to that, any case. That involves article 3 standing where the intended beneficiaries of the program. The schools are the intended beneficiary. Respectfully your honor i disagree. The financial benefits from a Scholarship Program is to the family. The families received the benefit of the scholarship. The scholarship is used by the families to buy education. The financial benefit is to the taxpayer who the tax credit. Thats the intent. Its an incentive for the taxpayerto give money. But there are many incentives that incentivize people to give money. Yes your honor, it does incentivize donations. At its purpose and it actually succeeded while the program was going in awarding scholarships to two of our three clientfamilies. I know it would it would be in the same situation. After all this is a small planet, its 150 and if they dont get the credit, its donor to this organizations dont get the credit, they still get a Tax Deduction and that Tax Deduction is more untapped so how can we even assume that its going to be less money in the kitty if the credit is removed. But the Tax Deduction remains untouched. Im looking at writing a decision in Eastern Kentucky and i dont understand how this case passes the standing bar windows didnt. Your honor, its simple. The fact of the matter is our clients received fellowships under this program which wasa financial benefit to them. The Tax Deductions are not i financial benefit to the tax payer because they are out 150 whether they pay their tax to the state or they donate 150 to the scholarship organization. Theres no financial benefit to them area its kind of a psychic benefit but it creates scholarships. It really created scholarships. Mister komer can i go back to Justice Ginsburgs question. I am having trouble seeing where the harm in this case is at this point. Its a strange kind of posture we are in but if you would describe to me what is the harm that the parents are suffering right now currently . Right now there students, two of the families s are on scholarships and next year they wont be. Im sorry to interrupt, i guess what im saying is that the cause of the Supreme Courts ruling, whether you go to a Religious School or you go to a secular private school, youre in the same boat atthis point. So ive always understood in these kinds of cases that the harm is the perceived or alleged or actual, whatever you want to call it discrimination but there is no discrimination at this pointgoing on , is there . Yes there is because the discrimination occurred in the judgment of Montana Supreme Court which considered a federal question which in that that led to the invalidation of the program. But it led to the invalidation of the entire program as it related both to private secular schools and private Religious Schools so the appearance of both are affected in the exact same way. Because the remedy, you cant let the remedy shield thediscriminatory judgment. The discriminatory judgment is in mistakenly believing that this blame amendment and application of it did not violate the federal constitution. If they got that question right we wouldnt be here. It was the program would still be going on in our parents would be. Im sorry, how could that be . Are you taking the position that as a matter of constitutional law, the Montana Supreme Court constitutional provision is unconstitutional . That states are forced to give money, tax credits to religious institutions and secular institutions . Are they required always to give money . So lets start there. Are you saying that the constitutional, that the constitution is unconstitutional . Meaning that montanas constitutional provision is unconstitutional. Montanas constitutional provision violates the free exercise clause on its face as applied to this program. So you are saying that states are forced to give money both to secular and Religious Schools. Not to the schools. This is a case about giving the money to the family. Its secular and religious families. If they give to one they must give to the other. Can the state choose not togive it all . Yes. If you start from that proposition, the Montana Court said we dont have a lawn now. Dont give to any area so lets assume that the Montana Court did what you wanted to do. And said this is unconstitutional under the federalconstitution. And its unconstitutional under the Montana Constitution. Which is what i think it did, by the way. That its unconstitutional under both. Even if it didnt say but lets assume. Lets assume it says its unconstitutional under the federal constitution. Youre saying they cant say separately its unconstitutional under the Montana Constitution. They have to keep the program alive. And the circumstances were dealing with your honor, they terminated the program. Im not talking about the circumstances. Assume their opinion was written exactly the way you wanted it to be. And they had said this violates the federal constitution. But it also violates the Montana Constitution. So instead of leveling the weight Justice Ginsburg said, were going to level down. It doesnt violate either of them. If we stopped the federal violation because were not discriminating against the school, any school. And weve now not violated the colorado constitution. Can they do that . Are we talking about the court doing this . Can the court do it, no. Because when you have a constitutional conflict between the two constitutions , the federal constitution. But you told me the federal constitution doesnt stop the state from choosing not to get a. Thats right. But here the state chose to give aid and it has been stopped from giving aid to our client. It chose to give aid consistent with the constitutional amendment. And the constitutional amendment sets restrictions on funds. And as a result of the research on funds that the constitutional amendment set, in this case which i have always understood to be a challenge to the way that the constitutional amendment operated on a particular program as a result of this challenge, what has happened is that neither the parents who want to send their children to Religious Schools nor the parents who want to send their children to secular schools get what they would like to get so theyre both being treated the same way. Only as a result of a mistaken understanding in the free exercise clause. We dont usually upgrade every line of the. Usually we look to an opinion and theres a decision below. And it had a consequence in the world and the consequence of this decision is that there is nodiscrimination. That neither sets of parents is getting what they want. Now, you might say both should get what theywant. And maybe that would be a better world. Maybe. But the constitutional harm that it seems that you have to allege here is the discrimination and that there is nodiscrimination. Your honor, there is no discrimination because the Montana Constitutional provision requires discrimination. On its face and as applied to our client. And if i can point out, this isnt a decision about harmonizing the two constitutions because the Montana Supreme Court did not recognize there was any conflict between them that had to be harmonized at all. Justice alito. Under our decision in village of Arlington Heights, is it constitutional for a unit of State Government to do something that it could do but if it does it for an unconstitutional discriminatory reason , is it an unconstitutional . Yes it is your honor. I see the light is on. Thank you counsel. Mister wall. Mister chief justice and may it please the court. The Montana Supreme Court held the Montana Constitution requires religious discrimination that the federal constitution forbids. Parents may not direct scholarship to schools solely because those schools are religiously affiliated. The state doesnt defend the error of federal law cousin was washed away. When the court invalidated the program and let everyone and he had. The Montana Supreme Court had no federal law to invalidate everything and light on a provision that inconsistent with and supplanted by the federal free exercise clause and crucially, petitioners continue to suffer from that federal free exercise violation regardless of whether other parents receive scholarships for also suffer collateral damage. If the Supreme Court had invalidated the program because it included historically africanamerican schools or allgirls school would be a straightforward equal protection violation. Nothing about it would be cured by the fact that other parents and been denied funding as well so. The injury flows through the schools, right . I mean, the money would go to the schools, not to the parents. And we dont have the school in this case. But i think that getting the standing issue mister chief justice and theyre losing their scholarships at the end of the school year. A condom for years and under the courts decision they lose them at the end of the school year though i dont think the state should be challenging article preinjury though its been just a question of whether there raising the rights because the reason theyre being excluded from the program, the answer to the question why dont these parents have the scholarships . Because they want to direct the scholarships to Religious Schools. Theyre not raising a right on behalfof the state. Everybody can see if all the parents and wanted to choose killer schools would be no basis for the ruling. The Scholarship Program would still exist. Its only because some parents that i want to send my kids to school like stillwater and in that point the state Supreme Court says we have a state constitutional guarantee. No state funds to Religious Schools. A straightforward violation of federal law. Are you claiming that what youre calling brave amendments that the montana provision and all the other states that have one, that is a matter of federal constitutional law , all those state constitutional provisions must be struck. Not the entire category because i think its more nuanced than that but i am saying what the court said in Trinity Lutheran, Seven Members and the court compelled to members of the court said in your dissent justice sotomayor. We think the same is true here. Thats a radicaldecision. We have a founding father madison lobbying heavily for the free exercise clause. An equally to stop states from both establishing religion or using public funds to support them. Theres been since the Founding Fathers a long history of people who for nondiscriminatory reasons, reasons related to their belief in the separation of church and state that have taken the position that the state should notgive money. He religious institutions. Youre suggesting now that montana in 1972 went to an empty exercise. They looked at the history of this amendment or one like it. Said it was odious, and many some of its people who voted for this bill and 72 said it was a despicable history. But they then looked at the Founding Fathers writings. They looked at the state of montanas religious tolerance had changed dramatically from the plane amendment era. And decided that they were going to fight with James Madison. Where the fathers of our constitution. And continue to say we dont want a to churches. Perhaps you could comment counsel. That was one of two points i was hoping to make on the merits that every timethat the state. To that in its brief and i think most notably pages 30 and 31 and what madison was talking about will help support laws, preferential age of the church, even the state admits that in page 30 of their brief. There is zero founding era evidence that you could have a jury available benefit and then i get to an institution. Chief Justice Thomas walks through the history of the opposite in his rosenberger conference that at the time of the founding when they cannot land in the Northwest Territory and other statutes to schools, included religiously affiliated schools and actually the tradition the founding is the opposite you cant disqualify them just based on the religious character you can have no compelled support, no preferential aid in the church and that different from whats going on here. What did you think of this . Im having trouble and i want you to tell me what you really think about this problem which is probably an answer that you will have fun about. Stay in San Francisco or boston or take any city and state and they give many, many millions of dollars to the Public School system. A lot of them a lot of money to charter school. Now, they dont give money to Catholic Schools. If we decide youre right, does that all change . No, in certain respects it doesnt change justice breyer. If you want to open up the funding they can put secular limits on the program and were goingto give matt scholarships. Im talking about the x billion dollars that the state of new york stands on the Public School system and i dont know how much, but i suspect they might spend money on charter schools. Lets call it another 500 million. They do not. Im just repeating myself. Spend money on the Catholic School system. Theres nothing immoralabout that. What they do, thats just what they do and that comes from the constitution. Its the same question, if i decide for you and i saying they have to give money of the same amountproportionate to the parochial schools . If they structure the benefit program the way they did here. Im saying not the way they did here and so forth. If theyre giving out Public Benefits for peoplewho go to private schools. What is private . Why is it they have to be equally private but they dont have to be equal with public . When you said charter schools. Forget charter schools. If any city or state gives out funds for private education which is not required to do but it givesit out and it gives it out just for scholarships. My particular was they give it out and its called thePublic School system of the united states. Im sayingthats what im talking about. Whats your response, whats the difference between this case, you win and the same with the Public Schools. They have to give it to parochial schools, whats the difference. Im saying in the last paragraph of Trinity Lutheran when the court said you cant deny a generally available Public Benefit to an entity that otherwise qualified on its religious character or nature that rule applies equally to schools. This seems, i was one of the seven in Trinity Lutheran but there seems to me a real difference in thiscase. In Trinity Lutheran , the state was using the religious status of various people or entities to limit access to an unrelated Public Benefit. To a completely secular Public Benefit. Here it seems to me that what the state is doing with respect to these Educational Programs is to say we dont want to subsidize religious activity. We dont want to subsidize religious education. And further, because of the way that the Supreme Court issued its decision, that will mean that we dont want to subsidize anyprivate education. So you have both the nondiscrimination after that put that aside, what this is is essentially a state saying for many reasons that have been viewed as legitimate even though not shared by everybody but have been reviewed as for many years, we dont want to subsidize religious activity. In particular religious education. Thats a far cry from Trinity Lutheran. Your question gets it but the two things i was hoping to say before i sat down, the first is all were asking and fisher is asking that you do what you normally do when you review a state Supreme Court decision. Page 32 of the it said no problem with federal law. They got federal law wrong. If any, on the federal question nothing else would have flowed, the trial court wouldhave been affirmative and everybody would have gotten scholarships. The application of the constitution, the only basis to impugn the state law so you should reverse the federal layer andsend it back. On the merits, i get that you can say its a harder case because its education and its not a playground and in that sense it may be a harder question of the Montana Supreme Court didnt take it as a case about youth, didnt say this was covered by dd or any of the rest area and it said religiously affiliated schools. I dont think we can distinguish back from Trinity Lutheran. Thank you counsel. Mister yeah makowski. Mister chief justice and may it please the court. Theconstitution does not bar the state of montana from applying a state constitutional provision that keeps its own state legislature out of the business of funding Religious Schools. The cost of not prohibit anyone to write exercise of religion and it protects religious freedom by protecting Religious Schools from government influence an interim government cannot use a and leverage to influence the content of religious education. Petitioners attempt to analogize this case Trinity Lutheran analogy is inapt for two reasons. The first is that the coercion aspect of Trinity Lutheran which is critical to the courts decision was absent here and in Trinity Lutheran church was quick to a stark choice. Abandon your religious faith and become a secular Stone Building and theyre going to get the money or to your religious faith and you wont get the money and that coercion was the premise of the courts decision that there was a penalty in free exercise. Thats not happening in this case where the state court held montana wasnt capable of knowing where a particular parents would use money or religious and nonReligious Schools and held that regardless of how the money was spent there would be a tax credit. The second distinction from Trinity Lutheran is Trinity Lutheran involved refusal to give money to the church for a completely nonreligious purpose merely because it was a church in this case is different in that the state declined to fund religious education. The court did not hold that under the new eight because Religious Schools would be denied funding for nonreligious purposes so let me start with the standing point which came up during the first half hour. We didnt make the argument in our brief because we concluded that the arguments really went more to the merits rather than the standing he believed an attenuated connection between the state action and petitioners free exercise but petitioners are alleging in their brief that they personally are the victims of status discrimination because they are christian and we think thats wrong on what the court did but historically the court house doors have been opened to make that argument and weakening on the merits they didnt put a condition on the free exercise. Id like to get back to Justice Breyers question and you which i understand to be why doesnt , do you think the other sides theory leads to a situation where the funding that both the Public Schools if they prevail wouldnt have to go to Religious Schools. Im not sure of the exact breadth of their theory, theres a number of them that make the same point. Is taken to be just that. This is a case about money and the question about whether it must go to Religious School and im wondering if the funding of Public Schools is the same as the situation involved here in your view. I guess i dont understand the condition for making the argument. But its still can bother me, id like to know if in deciding for them if i do, i have made a major change in the Public School system. Understand ones private others. What im asking for, you or them, why would that matter. Why make a difference, if you have to give, dont jump onto my argument and say great, its important to you, im not making an argument to support you, and asking a question to find out the answer. Im not sure how far petitioners argument would lead that i do think that one important point in this case is that states generally have had power over education and to decide theyre only going to fund the Public School system that is the ultimate effect of the state courts judgment. I wonder if theres a difference in the sense that we know funding of the Public Schools and the decision to divide a to private schools, except not Religious Schools. I think that the question in this case ultimately boiled down to the striking down of the program because of the no aid clause in and of itself is a violation of the free exercise right of petitioners and the first half of the argument involve a number of questions about how petitioners are harmed if the Program Level is shut down and i heard two sets of arguments from the other side, petitioners all of which id like to address. One argument is the broader argument that the no aid clause is constitutionally defective by its nature because it is discriminatory is not capable of being applied and the court should tell the court you cant apply this illegal rule and the second argument i heard is a narrower argument that as applied, the problem is that the court excluded Religious Schools from a General Program as in Trinity Lutheran so if i could address those two theories of the case by petitioners, the first argument is tantamount to an argument for no aid clause is unconstitutionally because like every single time you apply the no aid clause the rule is precise is that Religious Schools dont get money they were clear that they were not arguing, they were not making and a facial challenge. The challenge as applied to the particular situation here. Its that the case and i agree that the tenor of petitioners argument and the government is making a broader but commissioners argument , it is the case that in general , the state court can apply the no aid clause and its not just facially discriminatory to say because something is religious. Theyre just saying you have to consider it as applied here you i like your reaction to this way of looking at the case. Maybe its right, maybe its wrong. It is a violation of the federal constitution, its the state Supreme Court bases the decision on grounds that discriminate in violation of theconstitution, do you agree with that . I would agree with that but the question is whetherit discriminates in violation of the constitution. Then the argument is if they fail they dont have to fund private education at all but if they choose to provide scholarships that are available to students who attend private schools, they cant discriminate against parents who want to send their children to schools that are affiliated in some way with a church. Thats the simple argument and its hard to see thats much different from Trinity Lutheran. I think its completely different from Trinity Lutheran and im not going to reject your general premise that if there is illegal rule that the application is constitutionally defectiveand you can reverse the state Court Decision. Im not going to fight that proposition but the question here is whether the state may apply a no aid clause and i think the answer is yes because if you accept the premise. In terms of what youre agreeing with i want to press you further. Lets say a state Court Decision could be consistent with the constitution or not consistent with the constitution. The outcomemay or may not be. If the decision rests on an erroneous interpretation of federal law and remedying that error could provide relief, we have a case, dont wait . And assuming theres an error of federal law and remedying it might provide relief to plaintiffs, we have a case. I think as a general matter at a high level of generality petitioners identify an error of federal law i think the court can adjudicate the argument. So the question becomes do we have an error of federal law. Suppose the state said we are going to allow the Scholarship Funds to be used for alert skills or protestant schools but not for jewish schools orCatholic Schools. Unconstitutional . Is that a yes . Whats different when you say the Scholarship Funds can be usedfor secular schools but not for protestant , jewish, catholic or other Religious Schools because of the religious status . I think the right lens to look at that is the establishment clause. Regardless of whether theres an infringement the establishment call clause prohibits the state from discriminating between one religion to a different religion. A lot of the free exercise equal treatment cases are going back eversonmcdaniel , so you cant exclude religious people, religious institutions, religious speech, because its religious from a generally applicableprogram. In fact , its odious to the constitution to quote the words of Trinity Lutheran so why isnt this excluding religious people, telling them that theyre not entitled to equal treatment under the constitution, why isnt that a violation of, a straight violation of the Trinity Lutheran principle which goes back everson and why is it different from other hypotheticals. Estate has a choice, its not allowed to tell people we are going topenalize you for exercising your religion that a prohibition. The court insight is that theres no difference between the denial of the benefit and defined. Thats a prohibition because youre penalizing the decision to exercise religion. That doesnt mean the state has tofund Religious Schools and it doesnt mean the state cant provide a principal view. If youre running a Scholarship Fund and theres a group of people lining up for the scholarships, are you secular . You can get it. Are you catholic . No, youre out becauseyoure catholic. How is that consistent with the principle set forth in Trinity Lutheran or mcdaniel, justice brennans conference in mcdaniel . Thats what the state court ensured what happened. But the predicate was that that kind of discrimination is, does not violate the federal constitution. I think the state court can say as a stage we have a principal objection to funding of religious institutions but we understand that the sort of classification of coercing people into being secular is a penalty on religion so to balance those two interests are going to simply level down and i want to be clear, were not defending religious bigotry here. I think no aid clauses have a principal justification. Theyre certainly rooted in grotesque religious bigotry against catholics, you agree with that. I think into the 1880s there was grotesque religious bigotry amongst catholics. There was clear motivation for this. In the 1972 constitution which is where this was enacted i dont think theres any evidence of antireligious bigotry, yes your honor. Lets see if theres any real difference between this and the Trinity Lutheran. Excuse me. But article 10 section 6 in the Montana Constitution says that there cant be any aid in direct or direct any Institutions School or other institutions controlled in whole or in part. By any church, sect or denomination so if you have a school that has a board of trustees and one or more of the members of the board of trustees x official, members of a religious body, that would seem to provide control in part. Without the sufficient under the Montana Constitution without looking at all at the nature of the education provided by the School Lesson mark. Thats not how the state court has construed the constitution. Where has it said thats not how its construed . If you read the Lower Court Opinion theres this language about how the real problem is the money is going to the school which will spend it on religious education. Thats talking about schools in general, how do they know what school theyre talking about. Theres all this language saying money isgoing to go to a school and the school will spend that money on it was early religious education. I agree that the Lower Court Opinion is not completely clear on this. Part of the reason is i think this challenge has changed in this court in the lower court it wasnt in the no aid clause, it was the rule so the state courts in general should be entitled to adopt limiting constructions of their own constitution. I just dont think the state court had a chance to do that here because the argument wasnt raised and itwould be unfair to assume the broadest possible interpretation of the state constitution for purposes of invalidating. Can i ask you a question . Lets go back to the basics. Lets take the proposition here. That the law as written getting a discriminated area i know youre challenging that that it violates the u. S. Constitution. The cause rule one does. Because it permits secular schools but not Religious Schools from receiving the scholarship. I know you take as a defense decision that theycan do that. Putting that aside your wrong. Assume that. Now, there was a suggestion earlier question that if you were wrong and the Montana Supreme Court intern uses the Montana Constitution to level down, that it is unconstitutionally active. It is using religion to level down. How do you answer that argument . Because thats exactly what we were told in the question which is they are basing leveling down on the basis of discriminating against religion. I think the answering of that question requires a focused analysis of what the constitution allows. So if you accept the premise that rule one is unconstitutional because it discriminates and it says secular schools in and Religious Schools out, that doesnt answer the question of whether the mere application of the no aid clause doesnt lead to a judgment with that said. I think the Crucial Point in this case is to look at what the state court did when it applied the nowin clause. Is the true crucial question why the state court did what it did. Did what it did for an unconstitutionally discriminatory reason, then theres a problem in the village of Arlington Heights so to give you an example, the state legislature sets up a Scholarship Fund and after a while, people look at the recipients of the scholarships and some people say wow, these are mostly going to black and we dont like that and thats contrary to state law so the state Supreme Courtsays okay. That discrimination is, were going to strike downthe whole thing and is that constitutional . I dont think thats constitutional and we dont think race and religion are identical. What hes saying is the court took the case in the Prince Edward county thing. For the equipment and said they couldnt do that. They cant strike down all the schools even though the constitution didnt have a right. I think justice, id like you to think about that. I have a more directquestion on the merits. Look, state says Catholic Schools get some money, jewish schools dont. No problem, unconstitutional free exercise and establishment. The state says we get Police Protection to all schools. All people. But no religious institution. Thats unconstitutional. Clearly. Now why is it different . Im not saying it isnt. I want to know your reason why is it different. Quite the opposite. The state says we will pay for the salaries of priests if there mohammed in but not if theyre buddhist unconstitutional, right . So why doesnt it also violate the constitution for the state to say we wont pay the salaries of any priest. But we will if they are the head of every other organization i mean, see how im doing that lesson mark uses the point . Let me answer that question and go back to the race question. I recommend it. [laughter] ill give a brief answer. I think that theres a constitutional difference between distinguishing among religions and saying the government is just going to stay out of religion altogether. Many establishment clause cases are saying regardless of whether theres a Civil Liberties decision is contrary toprinciples to say that were going to treat one religion. What about the other part where we said look, you cant discriminate against all religion by not giving them playgrounds or you cant discriminate against all religions by refusing to give them Police Protection or fire protection. What about that part . Theres two differences between that case and this one. One is the striking down of the program which we talked about and theres a second point which is the distinction between a declination to fund religious education and refusing funding because someone happens to be religious for a completely nonreligious purpose. Can i take you back mister unocal the striking down the whole program because a number of people have suggested that must be motivated by animus towards religion. And i can think of many reasons why you would strike down the whole program that have nothing to do with animus towards religion. You might actually think that funding religion imposes costs and burdens on religious institutions themselves. You might think that taxpayers have conscientious objections to funding religion. You might think funding religion creates divisiveness and conflict within a society and that for all those reasons, funding religious activity is not a good idea and that you would rather level down and found no comparable activity whether religious or otherwise than fund both. Now, none of those things have anything to do with animus towards religion. I think thats right and i think thats why we dont think the race analogies at and its useful to talk about why the no aid clause was enacted based on the discussions in 1972 and why it makes sense those justifications would result. Why does that explainwhy the race analogy is in that . The Legislature May say they built parts and tools and they say the funding goes but if a higher percentage of africanamericans, and use the pools theyre never going to shut down whole program. And you wouldnt defend that on saying they could have a judgment that it decreases tensions among the different races. You would just lookat the facial discrimination, right , and conclude. That wouldnt be good under your view, what . Because youre shutting down the whole program. Why is that different than religion which is also protected under the First Amendment . Because i dont think race and religion are identical for all constitutional purposes. If the constitution any provision sing historically black colleges arent entitled to any aid at all that would be facially unconstitutional and you wouldnt even need to get to these as applied challenges but the equal protection clause invites a judgment that race is never every effort criteria in any government making regardless. And i dont think the rule is the same in religion. The court is about to hear a case involving exemptions of Religious Schools antidiscrimination laws that creates a sort of religious classification but thats not intrinsically unconstitutional. That your answer to justicekagans question . Id like to give you the chance to do that. I think if you accept no aid clauses are not facially unconstitutional and then i think its a hard argument to make for all the historical reasons, you have to accept that its at least permissible to a state for say for principled reasons rooted in National Tradition getting back to madison we have a preference to not fund religious activities, not prohibit it but not fund it. Theres a difference between saying were notgoing to fund religious activities and saying were not going to discriminate based on religion. Nobodys saying the state has an obligation to make particular grants to religious institutions or to provide any funding for private education all. The question is if there is a program that is designed to serve certain purposes can theydiscriminate in the application of them . In deciding who is going to get the benefit on the basis of religious affiliation. That sounds like more of the Trinity Lutheran hypothetical and there are certain things that they cant do but the state can do is say look, we have a no aid clause for a long time that says on its face we prefer not to fund religious activities for good reasons that ill explain in this section. Were constrained by antidiscrimination principles into coursing people to abandon their religion so if we have these principles, nonbigoted and historically rooted views that we dont want to fund religious activity on the one hand and First Amendment which clearly guard against coercion and penalizing religious faith on the other the way were going to balance it is to see what the state court did. To do what the state court did meaning . Meeting and validate the program and if you look at the reason the no a clausewas enacted , its hard to say that James Madison disables future states from enacting no aid clauses based on similar arguments to ones he made an in 1972 what the delegate said was that they can see the mechanism of protecting Religious Schools from political influence so to prevent dollar and from using its leverage to influence the content of religion education , theres a lot of leaders of religious denominations who testified in favor of the no a for that reason and its clear why that justification applies with complete force with respect to this program. What youre saying, the difference between death and race is it permissible to discriminate on the basis of religion and its not visible ever to discriminate on the basis of race. It seems when you talk about discrimination we can mean two Different Things. One way is to say that you cant have a rule that treats religion differently from other subjects which is i think the districts argument and if you look at the no aid clause that says Religious Schools are ineligible and composes no restriction on anyone else and thats discrimination and it should be wiped out of the state constitution to you by that argument youre basically saying every know a clause is unconstitutional even a family. All the state constitutions say things like a tax will be levied to build the church and that form of discrimination. You can let the attacks to build a bridgebut not the church. I dont know that all no aid in the country that have to be examined separately if they are challenged. A lot of them, im not going to get into an argument about in 1972 what do you want to argue that the reason why a lot of this popped up at the beginning coincidentally in the 1840s the time of the irish potato famine, that had nothing to do with discrimination based on religion . Im not saying that at all, the history is very complex. Theres a press agreement and we wrote a book on this that both parties site which says that the complex history and theres good reasons and batteries. Depends on thestate and i dont see. And you or could i say this. Yes, race is different from religion. Why . There is no establishment clause in regard to race. What is the establishment clause . Well, it has something to do with not supporting religion. And there is nothing more religious except perhaps for the service in the church itself than religious education. Thats how we create a future for our religions. Now, theres some line there and that line may be well, i just ingested impermissible under case lawof this court. Or it may be permissible unwise. Youd like to draw the line, explain it. I think we havent talked about the analogies to lock at all and i like to saya few words about that which are consistent to your question. Its true there are factual distinctionsbetween this case and lock. Im not saying theyre on opposite ends of each other but the question is whether that distinction can be located in the exercise clause is its true lock involved on the of the ministry but this case does too. The ministry of teachers for their students and petitioners. But this is a school and education there satisfies the compulsory education lawsof the state. So thats different from locke as professor laycock in his brief point out in a narrow decision about training of the clergyand it seems to me there are two Different Things going on. One is to Justice Breyers question , just funding religion, funding Religious Schools generally or training of clergy is an establishment clause concern. Its a separate issue whenyou set up a neutral benefit program. Police, fire or scholarships and allow people to use those things, allow religious institutions to obtain the benefits of those things on a nondiscriminatory basis and the question in this case it seems to me is which side of that line this comes on. If properly to look at it and if so why does it come onthe funding side . Im not sure thats the right way to look at it. Understand whether those are just unconstitutional and whether they apply to this case. As i said the no aid clause once concern about using government leverage to influence religious education and its easy to see how that could happen in the context of a neutral program like this one. You think that was the design of the no aid clauseto help religious institutions . If you look at the transcript in 1972, thats what its all about. Numerous religious leaders came forward and testified on the floor of the convention the strongest proponent was pastor harper and he told his colleagues drawing on his own religious faith and no aid clause was necessary to ensure Religious Schools were independent from government. The ones compelling the schools to participate in a program or accept funds from the program. That is true. Religious school that doesnt want to be part of a neutral program doesnt have to be. But theres a concern that the inevitable effect ofthis program would be that the government would exercise leverage over schools. I think it may be paternalistic but the state is allowed to have a structural provision in its own state constitution. Theres no bigotry and evidence from the actual convention at which this was enacted and i dont understand how my antenna could have done better than it did to wipe out its state constitution, start all over again. The other sides argument is the way you can do better is to say if were going to give benefits to private schools, which you dont have to do to Justice Breyers question you do not have to give benefits to private schools for funds for tax credits but if you do, dont tell someone they cant participate because they are jewish or protestant or catholic. I guess the concern of the delegates was that if you have money going to religious rules thats going to lead to entanglement problems and the way to solve that is to have a structural provision saying were not going to do it and thats not prohibiting anyone from exercising their religion, its simply separating the church from state without preventing anyone from going to be schools and its true theres a constraint in the federal constitution that says you cant coerce people, you cant tell people were going to penalize youfor being religious but if the state has to principles , and we think it should be able to balance those principles in validating theprogram. Just going back to the tanning question you are not at liberty to waive article 3 so why do you think this case doesnt fit under kentucky. Answer briefly your honor. Petitioners are claiming they are the victims of status this relation which is an argument that wasnt made in that case we think its just incorrect on its merits but this argument was made in an amicus brief and were not able to waive. Mister komer, two minutes remaining. Thank you. What were seeing here is that what Trinity Lutheran says. The state cant discriminate on the basis of religion. The decision is crystalclear when you read it that is what they are doing in this case. They focus on religious affiliation or religious nature of the schools. They are not talking about what the schools do. They are talking about what theschools are. Second , sylvan has already answered the question about this program is aiding. Its not aiding the schools. It is aiding the parents. As free and independent decisionmakers who are being given the power to choose a religious education or a secular education in private school. We are not arguing that the state couldnt just fund Public Schools but we are saying that when the legislator, when the state makes the decision to empower parents to exercise their right to choose and direct their childrens education that the state cannot distinguish between parents who want a religious education for their children and parents who want a secular private education for their parents. We are only in that area because the state legislator has made, like montana did, the decision to open it up beyond Public Schools. We dont question that the publics schools must be secular. This court recognized that in schempp and, as a result, the Public Schools now must be secular but it is at the time that the provisions were passed Public Schools were not secular but it is almost sort of illusory state, isnt it . The legislators can choose to give money or not and if they choose they have to do it this way but the court system is out of it because it cant force the legislators to act constitutionally under their own constitution. Thats basically what youre saying, isnt it . You may answer briefly. And not fund we are saying the legislator have an issue might be able to do more than what the court should have done here. They should have answered the federal question and they should have recognized that Trinity Lutheran is applicable and they should have it recognize that they were applying laws exactly the way missouri tried to. Thank you, counsel. The case is submitted. Cspan has unfiltered coverage of congress, the white house, the Supreme Court and Public Policy events. You can watch all of cspans Public Affairs programming on television, online or listen on our free radio app and be a part of the National Conversation to cspans daily washington journal program. 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