potentially calling into question you would in so far as it's a status based restriction because the benefit will be arguably any qualifying educational curriculum and then the only people outside of because of their religious status so then we have to deal with what's the significance of the for the trinity three but we don't get to that question if the restrictions not status based in this instead based on the content of the instruction relevant facts with regard to regress ability number one that the schools may not want to participate in the program at all because it's concomitant state regulations that made apply to them and number two in that case the citizens were from the town of mind not which only permitted up to ten percent of the students to apply for the tuition benefit and only if the district itself permitted them to receive it if they could demonstrate that the public school they contracted with did not meet their educational needs those two that the state of maine has applied it's a requirement in consistently and so if you want to look at the main supreme judicial court has said rather than at the commissioner has done in different cases we could look at that instead i'd draw the perch attention to same opinion it does not place any restrictions or limitations on the use of the funds or the content of the push offerings so i think it's quite clear if you look at the main officials have done  least some past instances and it but the main supreme judicial court has said that this is a restriction on what the nature of the institution might be but under any any any case of of that kind of inconsistency first i think it is contradicted by the other evidence from the record that i've just decided but nd let's put all that evidence aside and concentrate solely on that state and i'm happy to explain why we think that you would violate trinity lutheran although we knowledge that that's a harder case and especially given you a little on the boats we might be pushing at the edges of what we can extract out of trinity lutheran in that circumstance but i'd say even with the policy as now described by the state indicator that can lead to the disqualification of that institution from receiving benefits so at least to that extent we think it is unconstitutional but it would certainly say the department considers  english throughout the day and that at the beginning of the day had school prayer and at the end of the day had some kind of religious activity but to most of the time were some gauging in secular instruction the rise of that just a different system not within the scope of the benefit it's going to get us to the edge of that status you saw in that the supreme court has drawn but i think the best place to look for the anti establishment interests outweigh the interest in avoiding that religious burden because what the state a saying is it sounds you are teaching math science and english you still don't get the tuition for that if in addition to those you also do some religious things at the school that's where the could you offer us the view of the government as to what we were to make of that footnote and what the actual holding of turning return is particularly because you're aware of the law the circuit doctrine and we can deviate from but unless there is a court case that actually decide something that requires us to solve the issue right of training through actually held is that obviously directly relevant case but you don't seem to address that the footnote states that  the court did not address religious uses and we're not contending that the court needs to address religious uses in this case be pressed or or given on religious status so to that extent the footnote isn't even do anything other than place the playground resurfacing in the same category years as police protection fire protection so no i don't think that would be the right way of reading the footnote rather the  playgrounds of course still have to apply those same principles in other contexts and maybe that leads to different results maybe not but the relevant principles still control in those other s good morning mark maybe it's afternoon by now your honour's may please the court my name is sarah four star i'm an assistant attorney general from the state of maine and i'm here representing maine's commissioner of education  was not briefed it was not argued it was not a part of you it we spent a lot of time in our papers and before the court talking about rd party standing we did not talk about redress ability and the supreme court has made clear that focus on that purpose in northeastern florida chapter of associated general contractors here's what the court says they are on the government to rex a barrier that makes it more difficult for members of one group to obtain a benefit that is from members of ideas the denial of equal treatment resulting from the imposition of the barrier not the ultimate inability to obtain the benefit is there any reason for the exercise claim to be different from that it's not the benefit then with respect to redress the redress is to reduce the equal treatment it's not to get them into the school because the injury comes from the equal treatment itself just like the contractor case but it's not like the contractor case because in honor this is no different than the eastern kentucky rights case cited in not great the issue was the regulation of the hospital this yet it was indigent individuals who were claiming they were entitled to care and the court said very students they are being denied equal treatment in their ability to utilize that money but it seems much more like the contractor case than the indigents rights case that your benefit but it isn't right because there is no supreme can't because invalidating the sectarian work for a man in no way determines whether or not the student will get the benefit in order for the student to get the benefit of a regulated entity on equal treatment i have no other way to explain it your honor that the court has drawn a distinction between direct discrimination college admissions i believe that the college has an i v fluid missions policy it discriminates against women i don't have to prove that i would be accepted to the college you're after a legit no but that's not this case they are alleging and of course in a moment we'll talk about what the benefit is here and how they're not school participated they have never said they would take the benefit and in this litigation we actually deposed the two schools that the parents were seeking and both of them said we can agree that we're going to take the benefit now we're going to wait and see what happens and maybe we'll consider it and it's the plaintiff's burden in these cases to produce but it is rightly and not merely challenged unless they could show there was a majority minority school but if they couldn't show there was a majority minority school what would be the point of the lawsuit the court lawsuit to invalidate a statute  on a racial categorization but the courts exist to resolve an active controversies and if there is no active controversy in other words there is no such school then what would be the part three basis same as it is in northeastern contractor where they don't even have to allege that there is any ability for them to get the contract but in that case it's clear that there were contracts to be go didn't know legit but there were contracts that existed here we don't have a sectarian school that exists that will agree that absent this statute we'll take the money anyway i'm sure that what you're actually very interested in this case is everybody's reaction to trinity lutheran and we would like to state this one more a show on c n n because it does matter there's definitely a contingency aspect even in your will to the standing issue because we acknowledge when we said that there was standing and we had to have thought about the dimensions of stand because that's on us to figure or somehow doesn't apply they will not participate we don't know for sure whether that restriction does or does not apply there's a dispute about it there's the fact that there is a contingency about whether that restriction does or does not  definitely a part of it and that's why in these cases it's important to look at what is actually out there in the realm of possibility the commissioner bore no burden with respect to standing yet she demonstrated the speech claim and the equal protection training and nothing in trying to do lutheran speaks to any of those claims so that is all off the table it's the law of the circuit trinity lutheran speaks to a free exercise cla and here's the thing trinity lutheran you says in the most narrowest of times that when it comes to non religious use of funding it is constitutionally impermissible to discriminate based on religious status the missouri situation was very clear churches need not apply they left in place undisturbed rock sources d wasn't discriminated against because he was religious he was discriminated against because nobody religious or not got the tuition benefit and your honors in maine under our tuition program nobody religious or not has the right to a publicly funded sectarian education they simply don't and so whether or not the plaintiffs the parents in this case who truly testified that it was important to them for religious reasons or whether it's a single mother who wants to center son to a catholic school to instill discipline none of them received a sectarian education that has nothing to do with whether or not  state's public education made into law for it which has never been referenced or mentioned by the plaintiffs has been very clear with the purpose of the tuition program as it is a simple vehicle to allow students who live in small towns who cannot have their own school to access a public education that's it and as this court in you already explained the benefit being offered is a secular education here that would change this court's decision in you ok if we're honest have no further questions i have just one last one standing in in northeastern florida chapter so sure general contact is right after they make that equal benefit point they cro restriction they call him religiously based hostile to the religious beliefs they have and whether or not they actually be able to get into any school they can't use the benefit simply for that reason assumed for the board of education so getting rid of destruction would have no fact at all your honor i don't see how that squares with the running cases cited in our brief where each time even though they're  of the schools that are nutrition program in the same way that a non religious student who wants to participate in the tuition program has a choice of all the schools now both these students the parents care children the end of that other child may want to go to one of the christian schools but the issue is they can't unless one of those schools agrees to participate in the program they are being treated equally all students everybody gets the choices the issue is a regulation on the schools that has caused them not to participate  the way this has worked in practice over the past twenty years is that schools apply in any way to the commissioner of education to be included on the list of public schools that are available to receive public d happens to be an intuition in town and so yes we will process it in the middle of the year but i want to be very certain that you understand that there's no legal requirement as to which has to come trust her to potentially wri conclusion and justice souter writing in dissent when we're talking about the zelman case and o'fallon terry tuition program talked about the sort of three layers of evolution of the doctrine with respect to sectarian instruction it would essentially be an unenforceable statue in there would rely solely on the representations of interested parties and so there is no prohibition there is no entanglement issue when the government attempts to determine whether or not something is sectarian or secular the entailment problem which is a very real in this case is if we become a part of the public education system having the commissioner of education the attorney general or any other state official overseeing how the chief thank you thank you very much  including religion because promised scholars could use their scholarships to attend religious schools and even to pay for devotional classes in theology the only thing they couldn't do was to pursue a degree that would be dead that would lead to them leading a congregation that was the sort of religious training that was it issue and body and what's the course that interested luther is because the program went a long way towards acquitting religion there was no hostility towards religion and therefore that state only had demonstrated a substantial historic interest in order to justify the exclusion of that one limited narrow category of training but that's not what's going on here sectarian schools are prohibited from discrimination on the basis of religion and injunction preventing that sort of discrimination will alleviate our clients harm therefore i ask that you would use the district court's judgment and remanded case