This is from april. Its an hour. Case 15577. Trinity lutheran church. The state of new york excluded the Learning Center from a safer playground from children because it was operated by a Church Rather than a not for profit. Number one that the policy in this case is not neutral. Churches are not eligible for the benefit here. Assuming theres no serious risk of an establishment violation, thats off the table, are there ever instances in which status, religious status can be used to deny religion or religious believers, benefits from the state . Or are you saying that religious status can never be the basis for it. The question is why would it matter. The next question then i guess wasnt long ago now back in 1947 this court said in no uncertain terms, with tax money imposed to pay for building or maintaining churches or Church Property and doesnt that fit this case . And if so. I dont think it does. We have to be careful in not establishing a church not to deprive religious people or organizations of general government benefits. Thats the key here. How is removing the religious exercise there in . I read that this playground is part of the ministry of this church and, in fact i look at its advertisements and it includes play and conducted in a religiously valuable way. Thats the materials that youre that the church is advertising. How do you separate out the secular function and religious function. It doesnt mean that every single activity that occur there is happens to be religious. How about if the school does a prayer before the children Start Playing . Or how about if it chooses on a sunny day to do its religious instruction outside . How does the state know or how can it control without then controlling the involvement. You have to look at whats going to fund. Is the money going to a religious activity or secular activity. This Court Approved funding for Religious Schools but not religious activities. Suppose there was an application from a church to use its playground for religious activities, have Prayer Service there is for example, could the state in your view deny the money on that ground . Or at least would you think that was a significantly different case . I think it would be a different case. I would say the answer to the question would be i dont think they should and heres why. I think they should be able to deny it on that ground and the reason i say it is all were talking about is a surface on the playground for when kids play. As was mentioned in one of the briefs, i believe it was the world vision brief, it doesnt enable religious activities or allow it or prohibit it. Its separate and apart from it and a good example would be how would you one of the things that the court has thought about in the past is computers for education. So i guess somebody could make the same argument about computers. Well it doesnt its separate from the religious instruction that might be carried out over those computers. Do you think thats the same or is it different . I think its actually easier than computers because you dont have to get into it its not even the entire playground. Its the surface that doesnt enable any religious activity. So if there was a program that said we have a lot of Old Buildings intact and were going to reimburse for fire extingu h extinguishers for all the Old Buildings including the schools and if you have a Religious School and use this fire extinguisher reimbursement could they say now that you receive that Public Benefit and safety benefit you can no longer include any religion in the classroom and schools. My point is that would be going too far because its not advancing it. Other than children playing, going to have an auction or anything else, isnt it, the consequence of your argument that the church can use the playground for more religious activities if the Public School can use the playground for other nonplayground activities . I think it can and i think the key here is. You think it can what . I think they should be able to both the Public Schools should be able to use it for other activities and i think that the religious should be able to also. The reason for that it would be a penalty on the benefit to say because were putting up a safer surface for when the kids play thats the main activity here if for some reason someone prays one day there or they decide to go outside for one event its not the government thats advancing religious. Its the incidental advancement done by the private party. All of these questions really want to merge on to the establishment clause . Fire extinguishers . The bible lessons on sunny day, so forth . Suppose we have an Earthquake Safety Program for schools or for buildings with large numbers of people and you have an earthquake, california 40 of the cost of structure is earthquake proof. Suppose they had earthquake reinforcement for a church and had to spend extra money because theres a window in the shape of a cross. These are all establishments . They are and interestingly in this case the state can see as did the lower court there is no establishment. But in my last, earthquake safety, any problem with giving the money to the church and spending the extra money for the cross in the window . Its for public safety. There would be an issue on the establishment clause. The question of the establishment clause but once you get to the fact that there is no establishment clause problem which is what we have here the question then is can you single out religious people or religious organizations from penalty from this benefit or as this court said, your forcing them to choose between exercising their religious faith and receiving going back to my first question your position is theres no establishment violation there can never be extension based on religion. I wouldnt say never. Example. What comes to mind is the joints and the reason thats an important one there is that was a narrow distinction based on what this court said are unique historical interests and the program there went a long way to include religion. Here it closes religion out at the door. But they did say in this case or stipulated that this school has a nondiscriminatory policy but suppose it didnt. Suppose its policy was we prefer lutheran children and if we have any space left over after that well take other christians and then after that, maybe jews and then everyone else. They want the paving of their playground. Could this could they demand as a matter of federal constitutional right that that playground be funded even though they have a policy that favors members of their church. So this church would say we would take only lutheran children. I believe it can. And still get the public money. I believe so because were still at the premise of why are we making the church choose between exercising its religion. He cant both be a minister and also be a constitutional delegate. Do we know what missouri, how missouri interprets the term church in its constitution. It speaks about church. Is this a matter of the form of the ownership of the facility . Is this playground considered by the state to be part of the church because of its proximity to the church . What if it was a religiously affiliated school not with the church. It would depending on how it was. Any organization thats owned or controlled by a church. So its controlled. And also any religious organization so its not only the church its other religious organizations and Missouri Supreme Court case law says the way we decide those questions is how much religious influence is there in the church . In other words are they serious about their faith . Is it voluntary for the student there is . So theres a question about how religious you may be in order to receive the benefit. But thats what the briefing has conceded into churches. My questions about religious uses i think was to get at a broader point and breeoader distinction and ask what you think about it. Youre on strongest ground when you say look t state has decided to fund some activity and its denying that funding to a particular party based solely on that partys religious status and thats the way you briefed the case. I hear you making a different argument or broader argument now that extends into a states decision to deny funding for some uses we really just dont want to fund religious exercise. They can do religious exercise we dont want to fund religious exercise and you might think thats out of bounds too but what im trying to figure out is is there a distinction between these two things. I dont think its a broader argument that im making. What im trying to communicate is when you look at what youre funding this program says you cant use this money for any religious activities and it has to go toward the playground resurfacing so its a reimbursement where the Church Already lays out the finances. Once its put down the surfacing then it puts this information in and gets reimbursed for it. My only point is can the state then say for example now that we have given you this transportation or hooks you cant engage in religious activity once we have given you the separate benefit. Not that you can use the money for religious activity. You dont disagree with that. The state sen titled to say you cant use this money for religious activity and maybe ill bring you a little bit further, were entitled to take certain measures to make sure that you dont use the money for religious activity. A agree. I think it goes too far to say they were protecting these textbooks so you have to stop all religion in your school. Does the record show about nondaycare or playground activities on this surface. You were talking about lock. This is dissimilar from lock. There is a tradition. Theres 39 states with constitutional amendments like the one missouri has. Thats a history thats even longer than the lock history. And the essence of that history is basically we dont want to as a country or the vast majority of states to fund houses of worship. One would think that if theres play in the joints that that would include the concept that states are free to say we dont want to spend money from the public on houses of worship. Now you say this effects free exercise. We seem to be confusing money with religious practice. I dont think the two are tied. This church is not going to close its religious practice because its playground doesnt have these tires. So im not sure how this is a free exercise question because there is no effect on the religious believes. No one is asking the church to change its believes. In fact no one is asking the church as a condition of saying dont use what we give you for religious purposes. Theyre not even doing that. Theyre just saying we dont want to be involved with the church. Sure but theres government coercion when you say theres a Public Benefit and the only way you can receive that Public Benefit. Why is that coercion with respect to your believes. Because its a choice. He could not do both things simultaneously. He could not both be a minister and be a constitutional delegate and what the court said forcing that choice. But you could have a playground here. But you cant be a religious organization and have a playground. You have a playground. No one is taking the playground away from you. But youre being penalized. No the priest was being penalized. He was being told you cant be a priest or a congressman so you cant do one or the other. Here theres nothing being taken away from. Sure its the same Public Benefit. You cant operate this as a religious organization and receive the Public Benefit. What do we do with discrimination for religion . Under your theory . The way youre going in your theory is an expansion and what are we going to end up with when secular people say religious people are being discriminated in favor of and against us . If status should not be that effect on free exercise what are we going to do with tax benefits . What are we going to do with the exemptions that churches receive . Those are benefits. I would saw the the clauses take care of that. For example if it goes too far and the government benefit is solely favoring religion its a violation of the establishment clause. Theres plenty of people that think Tax Exemption goes too far. Right. I dont. I dont. I im saying theres people that make that claim. So the courts already ruled on that. On one side the establishment clause. If youre going too far but if you go the other side this court has said for decades sometimes we may and even must accommodate religion and that is the favorable treatment that youre talking about but all the [ applause ] s Work Together in that route. If you take it too far you do van establishment clause problem and this case has conceded there is no establishment cause problem and there is a point where you can accommodate religion under the free exercise clause but they all balance out each other. In this case its not only that but it was specifically said if you target religion on its face which this policy does then its unconstitutional. I dont know whether we need to get into the history of this particularly amendment here. I tend to think we dont need to but at the beginning of the line of questions that she just finished she began with the suggestion that perhaps this amendment reflects an admirable historical tradition that should be respected. Do you think that that is the proper way to analyze this question . I dont. This has been briefed by several briefs and briefly by us is a product of what we would consider to be one of the amendments. As this general establishment clause thats why our argument is we believe there is one. Or at least churches. They have not. Prevent the state from say having a border guard or crossing guard or Fire Protection or Health Inspection . They did not. We have a governor. He said hes going to give you the grant. He said that we know for four years it could happen. What case would you cite as closest to the proposition. You didnt ask for money did you . No. You just wanted an injunction for the future. No. And youre going to get that injunction whether you want it or not. Possibly and likely temporarily. Temporarily. Is there any chance he would change his mind. Yes. What . If the political winds change. We have this policy by facebook or press release so it can be changed back. I see that. What case would you cite. I think the best two cases are friends of the earth and i think those are more difficult cases than this case. Suppose missouri has a policy that it has today very recently and we were asked to grant it in this case. That would be a factor in our decision whether we thought this was an appropriate case to review, wouldnt snit. I think one of the problems is that the original policy was based on Missouri Supreme Court interpretation so there was already talk that the new policy is going to be challenged and likely struck down by the Missouri Supreme Court so absent a ruling here the old policy will be back in place. It shows why this kourlt needs to issue a ruling but i think what is likely to happen under the doctrine especially as this court has said we look at this with a critical eye because of the 11th hour change it is going to turn to its old ways. It clearly is not only in this administration but in the new lawsuit being brought to challenge the new policy because it violates why were here in the first place as a Missouri State constitutional division. May i take you back to the substance . Lets talk a little bit about federalism. Heres what id like to know. When we see these funding cases it comes in a different context. The state wants to give money and somebody is objecting and this case comes in a converse way where a state says we dont want to fund this institution and these churchstate divide its a hard issue. Its an issue where the states have long stand in law. Its an issue where im going to say that nobody is completely sure they have it right and so theres something attractive about having some play in the joints where states can go their own way and make their own choices and why shouldnt this be one of those cases . Because i dont think this is one of the difficult cases. With the exercise and establishment clause this is one of the easier cases and the reason for that is the first conclusion was there was no violation there. Here there clearly is. If you look at the courts case law this is singling out a religious organization. So just having a free exercise violation takes it out of the play when there wasnt one there. Thats true but if theres a constitutional right at stake that trumps. But the question is how are we going to interpret the constitutional right. What im asking is do you see value in the other side in having some flexibility here for states to make these sort of choices . States have tremendous leeway and heres what i would say. The state doesnt have to set up the program in the first place. Number two it could say were only going to do government schools playgrounds and not private schools but once it sets up the program to include all not for profits and all not for profit preschools it sets out 16 different criteria that everyone has to comply with and then the question is when you have a religious organization that meets those criteria and does better on them than almost everybody else and then you look at the application and say we just found out your operated by a religious organization were going to take you back out of that even though you meet the criteria and further our interest better than anybody else that seems to be not difficult. One last thing, might the state think heres the problem, the problem is this church has come in with a very competitive application we want to give money to this church, thats a Protestant Church, Catholic Church across the street. Catholic church applies doesnt get money. This happens five years running and people start thinking well why is the Protestant Church getting the money and the Catholic Church never gets the money and the state says we just dont want to sow that division and mistrust and. Sure. Sound likes a reasonable observer question but put that aside if you know the history and context of the program this is a competitive grant and should be religion blind so if youre not looking at who is applying you can grade this like this application was graded highly based on secular criteria. Theyll know its not favoring a religious organization. When you remove the religious organizations youre actually singling out for a benefit they should otherwise get. Thank you, council. Mr. Chief justice may it please the court. He asked the question as to whether this is an admirable tradition. This should be respected. This 39 state tradition of keeping hands off of religion and the answer from the states view is yes. In 1820 missouris First Constitutional Convention adopted from jeffersons virginia statute from religious freedom the language that no man can be compelled to erect, support any place of worship. We modified that in the 1865 and 1875 constitutions and in 1945 it was reenacted in our constitution with reference back to the founding. The question then is whether that fits within this courts jurisprudence under the First Amendment and there we look at both the establishment clause and the free exercise clause and the play that this court confirmed or recognized you say theres not an establishment clause. We say theres not an establishment clause violation. So governors decision to proceed differently doesnt violate the clause. And both are with regard to endorsement and entanglement. Your argument that this is valid away . Yes, we dont want to be in position where we are selecting among churches where we are making a physical improvement on church policy. This is a status based statute. In that respect its different and in others its different as well. It is by the state. You dont want to have a program that makes physical improvements to churches and i just wanted to ask you about some federal loss that are highlighted by the Orthodox Jewish corporations and get your reaction whether a program like that would be permissible under the missouri constitution. So one of them is a federal Nonprofit Security Grand Program providing grants through the department of Homeland Security to harden Nonprofit Organization facilities that are deemed to be at high risk for terrorist attacks so if you have a synagogue that is at high risk for an attack by an antise mettic group or mosque that is considered to be at high risk or attacked by an antimuslim group would they permit like we have around the court here . The answer traditionally and im not sure that i can speak for the current governor. Of course i was brought back to argue this case but traditionally state money could not be used to provide a physical addition to a church or synagogue. Have two more. This is a federal program that provided grants for the repair of buildings that were damaged by the bombing there. Would that be permitted . Under the traditional view in the state of missouri it would not be permitted providing they were church buildings. Worship buildings. Last one. This is a new York City Program that provides for enhancement. Under the traditional view in missouri if it was actually a cash grant, money leaving the public treasury to go to a church it would not be permissible. That doesnt mean that a religious affiliated school could not qualify. The st. Louis University Case shows that the Missouri Court versus been willing to draw the definition of churches and religious institutions pretty narrowly. What is the definition of the church . A religiously affiliated school is not a church under the missouri constitution . The decision with regard to st. Louis university was that even though it was a Jesuit Institution and had a jesuit president and on the board it had a selfperpetuating board. It was determined to be eligible to receive why would that be so. The missouri constitution permits. We have a school run by the Trinity Lutheran church and then next to it we have a jesuit elementary and secondary school. One would be eligible and one would not be eligible. It would depend on the nature of the two. If Trinity Lutheran went back to the position in 1985 and the preschool was an independent and affiliated using the churches facility under a Police Arrangement the state likely would have said yes. Even though theyre equally controlled by a religious organization . No. It would be a fine line in terms of the control but no if the organization itself, the church its rather than a selfperpetuating board controlled the preschool that is what has made the difference in missouri in the past. Although understand we have very few cases in missouri that have addressed this. Could you go back to where the justice started and you said no money to churches. One is were not taking money from the treasury and giving it to the church. And they never said its okay to write a check from the public treasury to the church. Were providing a service and its not being provide for the benefit of the church. The service is being provided for police and fire for the benefit but thats easy to change. We imagine state x. And state x says were not going to provide Police Protection. We will for everybody but not the church and by the way that costs us extra money. We have to hire extra policemen. Thats all. Why not . Same with helping children that get sick at school. These hypotheticals are obvious. Nothing to do with missouri but as soon as you answer that, ill be able to know if it asks you the question. Well this differs. Im not asking that yet. Im asking does the constitution of the United States permit a state or a city to say we give everybody in this city Police Protection but not churches . We give everybody Fire Protection but let the church burn down. We give everybody Public Health protection but not a church. Thats the law in my imaginary state and im saying does the constitution which guarantees free exercise of religion permit such laws . Im not going to take a position that it permits those laws. All right. Then you say no it does not permit those laws. Very well. If it does not permit a law that pays money out of the treasury for the health of the children in the church, school or going to church how does it permit missouri to deny money to the same place for helping children not fall in the playground, cut their knees, get tetnus, break a leg, et cetera. Whats the difference . The difference is that the establishment concerns that motivate missouris policy do not aplay in the police and fire context but they apply here. Health context . I dont know that they apply in Health Context because the kind of examples are examples where the benefits are universal. They are not selective which they are here. Theyre universal so we start on the endorsement side in those instances the state is not endorsing a particular church by choosing to provide that church with those benefits and not another church. We do not want to come to the edge of violating the establishment clause. Were not taking the position we would by doing this. No, you take the position that it is not. It is not a violation. The question is do we have to come all the way to the edge of a violation which is what theyre arguing. As long as we arent vibrating theres no rule. We just dont want to be seen as giving money to one church and not another in these programs. Thats the endorsement side. That was your answer. But heres the thing. Theres a constitutional principle thats as strong as any constitutional principle that there is. That when we have a program of funding that everybody is entitled to that funding to that particular funding whether or not they exercise the constitutional right. In other words, here whether or not they are a religious institution. And thats a pretty strong principle and how is it that the state says that. If were only going to look out for rubber then what your honor asks does make sense but the rubber doesnt have any meaning until its placed there and is available for use. And under this theory we not only have to put rubber on playgrounds but dont we have to put new paint on the sanctuary . Dont we have to reimburse for pus to be upholstered . Not under lock . Lock drew a distinction between assistance for devotional, theo logical education and scholarship and others. And it raises much more Serious Problems than this case. I think that this case raises more Serious Problems than lock in a number of respects. Its a direct payment to a church. Not an indirect payment chosen by someone else. Its not available toerge. Its only available to those that are selected. Youre right. Its not a General Program in which everybody gets money but still the question is what if some people can be disentitled from applying for the program and receiving that money if theyre qualified based on other completely nonreligious attributes and their disqualified solely because theyre a religious institution doing religious things even though theyre not. They could promise you were not going to do religious things on this playground service and youre still saying well no, you cant get the money. Well, they could but that doesnt get us out of the entanglement issues here. We have a church that has requirements in their preschool the idea that the government is going to dictate what is taught at this church even if theyre willing to accept it which they are here is the establishment clause considerations that have highlighted them. You agree there has to be a line. Yes. One line you suggested is the question that youre selecting rather than giving to everyone but would you say the same case, were you to give the money to all schools instead of just some by selection . Then would be unconstitutional . I dont think so. The other line is where there is a grant given to all schools private and public and the purpose, and that grant has nothing to do with religious practice. But it does have to do with health or safety. Then you have to do it. What about that . You win on the first and lose on the 2nd and theres two competing lines that im at least seeing. Its actually understand that this is a church that declared in their petition that they used this preschool on members. Its not. No, im saying that your answer said the issue here is that its the physical area near the church . No, im saying that even physical changes, even if they have a safety element may still have an entanglement problem because were saying to the church you have this now incentive to rearrange your property, your church site in order to maximize the amount you get from the state rather than maximizing the Spiritual Development of the church. What if you had a program at the state capitol, tours for School Groups and you had someone that coordinated and tied it into the social studies program School Groups can come in but no religious groups. Is that okay . I dont know that it would be. We have tours like that. If you cant answer the question whether or not you could prohibit that i dont understand the basis of your position. The tours at least in our experience are also universal. Everyone that comes to the capital gets a tour so in terms of universal versus selective we would be in that range but also in regard to entanglement they dont require the state to be entangled in anyway be w the church and its ministry and the playground improvement here does require that. Not just as a curriculum but as to the manner in which this is is done and the way in which its portrayed to the community. Thats the kind of entanglement. What do you mean the way it is portrayed to the community . Well, among other things in this particular program the church gets points for telling people in the community that the state paid for this improvement to their church. And so it exacerbates the endorsement problem by telling them what they have to say publicly about this improvement. You could say the same thing that the church is delighted it has Fire Protection. If we said were only going to provide Fire Protection to churches that will declare publicly that they appreciate the states providing that maybe but thats not selective. So that statement by the church has no meaning. It cant be perceived as an endorsement but when i drive past this church and this church has this beautiful new playground surface, that the state paid for. I dont know how you can draw a distinction between a program open to everybody and Selective Program. Suppose missouri offered 50 full College Scholarships every year to students that achieve certain academic criteria. But after a few years the state saw that and a number of these were going among those given to the private schools and a number of the scholarships were going to students at schools that are affiliated with a particular faith. So theres any hard limits. Thats the basis. Whats the difference between that situation and this situation. Or between selective and nonselective. The question becomes whether our endorsement and entanglement concerns are of rational basis. Im not talking about equal protection. You said it matters and whats the basis for drawing that distinction . I thought the basis was it prevents fear and perception of faif rottism. Yes it does. And it is a publicly manifest endorsement. I can understand how the states interest might differ some but this is a program open to everyone. Happens to be a Competitive Program but everyone is open to compete on various neutral terms and youre depriving one set of actors from being able to compete in the same way everybody else can compete because of their religious identification. And that is what we were doing because were concerned about the endorsement and entanglement issues that arise in connection with this type of a program. Yes and those are interests but it does seem as though this is a leer burden. Looked at that way this is a clear burden on a constitutional right and then they rise to a high level. Because people of a certain religious status are being prevented from competing in the same way everybody else is for a neutral benefit. Well, this is, its not like mcdaniel where someone is being parred from participating in the life of the community. This is the opposite of that. Its not like what we have in the sense that here we have we have a direct payment to a church. Im not sure im answering your question, your honor. Im sorry. I know the court is very grateful to defend the old position. But i am worried about the if not that the adversity in this case. If the attorney general is in favor of the position that your adversary is taking isnt his appointment of you creating adversity that doesnt exist . He appears on one of the briefs on the other side. The first is the acting attorney general and the acting attorney general at a time before the governor gave his new instruction asked me to defend the position because at that point it was still the position of the state. That is the question. It doesnt appear to be the position of the state right now reading through the lines of the acting attorney general to us it doesnt appear that he believes that youre taking the position. So let me talk about what has happened and what happens now. Of the director that is my client and put out the 2017 application and 2017 instructions in which she largely tracked the 2016 and prior ones including 2012 and eliminated all reference to churches religious instruction, all of those were eliminated. Thats all i know about what she intends to the state and she i the representative of the state, are not willing to fight this case, are they manufacturing adversity by appointing you . Well if we have no adversity, hasnt this case become mooted . So let me let me tell you what happens next if the director actually grants issues a grant to a church. If she does, then under missouris liberal taxpayer standing rules someone can then sue and say, you are violating the state constitution. And if there is a determination that she was violating the state constitution, then the question before the court today would have to be answered. All right. Do you agree that this courts voluntary cessation policies apply to the mutinous question . I agree it could apply, it is not a perfect fit. But certainly theres no assurance four years from now with a change in administration or at some point in the interim through a taxpayer standing suit that there wouldnt be a change back to the prior practice. Mr. Layton, im struggling still to understand justice cagans question, the answer to it. How is it that discrimination on the basis of religious exercise is better in selective Government Programs than General Programs first . Second, how do we tell the difference between the two if thats the line were going to draw . Is it selective based on who can show up at the capital and afford to do that, Public Benefit programs, arent they often selected if you meet criteria . Copy right laws, you have to have an original work, things like that. What do we do about those problems . Well, i still maintain my position that when we have a case where it is a Selective Program that is publicly announced, publicly visible that it is different than these other kind of programs. How do we draw the line between selective and general . One could seem to play with that line forever . Well, one could just like the rest of the lines in this case. We dont get a fine line in well, discrimination on the basis of status of religion, theres no line drawing problem there. We know thats happened in this case, right . We do know that the decision here was made because it was a church, and assuming thats what status means then i suppose we know that. I mean thats true. If you make that the line, selective versus universal, if you would like, you can reproduce the same problems. Volunteer Fire Departments most places but the state gives grants to upgrade the upgrade. We dont have enough money so we have selection. Same with police. You have crossing guards. You know you have dangerous intersections, there are crossing guards. We have grants to help the schools pay for the children. Do the same thing with health of children. You know, i can do that. Thats what i see as a difficulty. We choose your line there and we p proliferate litigation forever, in areas that are critical in police, fire, health. Police, fire and health when theyre universal, but you gave the crossing guard example and in missouri it is not universal. Of course. Thats my problem. I can reproduce programs in the state that seem absolutely necessary for Police Protection, Fire Protection, health of children, and it seems irrelevant factor whether it is open to everybody and you automatically get it or whether you have criteria and are selective because you have a limited amount of money, and you want to make that line an exercise . Im afraid of that one. I put it out so you can reply. The answer would be the line is some combination and i cant give you a bright line because youre rejecting the bright line we have. Some kind of combination of the endorsement problems with the activity and the entanglement problems that come when dealing with Grant Programs that actually affect the Physical Plant of a church and how that plant is used in a preschool or otherwise. There is no way for the state to comply with the its determination maybe the requirement that we police the use of the funds and what the funds here put on there without becoming involved with the church. Theres a statement in the appellants brief that says the church is told it cant participate in the life of the community, but what trinity wants is to have the community participate in the life of the church. That is anathema to the kind of basic doctrines we get out of the founding euro, that provided for a division between why would it be on the basis of a Physical Plant as opposed to, say, personnel or nonphysical grant money . Why wouldnt what be . Now the line is moving. Now it is apparently on the basis of whether granting money to a Physical Plant or to some other purpose. Well, no, im saying that the Physical Plant is our case because the Physical Plant is a an improvement to the Church Property that the church will use and may use for actually proselytizing and not just use it for religious activities. I mean wherever the line is, that ought to be on the other side of the line. Just like wherever the line is, writing a check that says payable to Trinity Lutheran church ought to be on the other side of the line. Thank you. Thank you, mr. Layton. Mr. Courtman, you have three minutes remaining. Thank you, mr. Chief justice. Just three points in rebuttal. First of all as to the endorsement problem, i think the neutral government criteria take care of the endorsement problem. So when you have this competitive grant that you have to fill out this pretty complicated application, 16 neutral criteria, there is no endorsement of religion. I think the free speech cases give a good analogue to that. Number two, as far as the selective or universal government benefit program, i dont think that is really the test here. The reason, as your honors mention, if this was open to all schools and it was universal, they still would be prohibited from giving a grant to a religious organization. So whether it is a narrow class of all nonfor profits or a broader class of all schools, they would still not be able to fund based on their constitution. Lastly as we talk about evening tanglement, this is not an entanglement issue. Entanglement generally is an ongoing intrusive surveillance. It is not a onetime grant where you have to show a receipt for the expense to receive the reimbursement. If there are not other questions, i yield my time. Thank you, counsel. The case is submitted. Senate debate on the Health Care Law replacement takes place this week. We posted the bill at cspan. Org. You can follow live Senate Courage on cspan 2, online at cspan. Org and on the free cspan radio app. Recently on cspan, Williams College student zachary wood at a Senate Judiciary committee on free speech on college cam pulses. The president of Williams College unilaterally cancelled the speaker. Days later the president enact new speaker policies that made bringing speakers to campus an especially arduous process for my student group. What i find impermissible, undemocratic and antithetical to the college i attend is the president s decision to disinvite a speaker solely on the basis of his inflammatory remarks about race. Congress woman diana deget on the Opioid Crisis in the u. S. And i was sitting next to the Denver Public librarian and i said, m what are the issues youre facing here at the Denver Public library, and i thought she would Say Something like, you know, Cyber Security or access to books. She said, you know, we have people overdosing in the Library Every day and we need to get our librarians meloxone so they can give it to other people who overdosed. At the Denver Public library. And senator john mccain at the confirmation hearing of patrick shanahan. We now have an executive from one of the five major corporations that has corralled 90 of our Defense Budgets and on one of the major issues that this committee has had hearings about, has had markups about, has had reported out our bill, and you want to find out more information. Not a good beginning. Not a good beginning. Do not do that again, mr. Shanahan, or i will not take your name up for a vote before this committee. Cspan programs are available at cspan. Org, right on our home page or by searching the video library. Now the Senate CommerceCommittee Confirmation hearing for david pacoski to be the next admin straighter for the transportation security administration. The tsa is responsible for security at airports and railways including amtrak. This is 90 minutes