we'll hear argument first this morning in case fifteen five seventy seven trinity lutheran church vs comber mr courtman thank you mr chief justice i may please the court the state of missouri has excluded the learning center from a recycling program that provides a safer playground for children soley because to preschool is operated by a church rather than a secular not for profit the state has made several important concessions in this case number one that the policy in this case is not facially neutral and number two that based on their religious character churches are not eligible for the benefit here this is admitted to discrimination against religion violates this court's free exercise principles first  in mcdaniel and smith the free exercise clause prevents the government from imposing special disability on the basis of religious views or religious status and forcing a choice between the exercise of religion and receiving either a government benefit right or privilege assuming that there is no serious risk of an establishment violation that's off the table are there ever instances in which status religious status can be used  to deny religions or religious believers benefits from this the or are you saying it is that absent an establishment clause problem that status can never be the base of religious status can never be the basis for governmental action governmental ordinance criminal i'm not sure there can be i can't think of a specific example and the reason i say that is the question is why would someone religious status matter in the first place to receiving a government framers didn't want was tax money imposed to pay for building or maintaining churches or church property and  i don't think it does everson also said that we have to be careful in not establishing a church not to deprive religious people or organizations of general government benefits and so i think that's the key here i think there's a difference between funding of religious activities and funding secular activities a religious organization when i was the building separate from the religious exercise there in i believe that this playground is part of the ministry of this church and in fact i look at it by laws i look at exactly triesman sin in includes play and conducted in a religious plea valuable way i think that's the materials that that the church is advertising how do you separate out its secular function from its religious function i think the way the court always has and the answer to those for example even though the motivation behind operating this preschool is a religious motivation doesn't mean that every single activity that occurs there happens to be religious well how about if the school does a prayer before the children start playing i don't know not 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 on the basis of belief and viewpoint how could they control against that involvement sure it's the same way it has in all the case law and that is we have to look at where is the money going to what's it going to fund and in this particular instance for example if you look at the this court's case law going back from everson and all the way forward it always said is the money going to religious activity or is it going to a secular activity this court has approved funding the two religious schools just not for religious activity or do you think mr courtman suppose there was an application and from it a church that used its playground for religious activities had prayer services there for example could this state in newark view deny the money on that ground or at least would you think that 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 don't think they should and here's why i think they were they say they don't think that they should be able to deny it on that ground and the reason i say that is is all we're talking about is it is a surface a safer surface on the playground for  when kids play as was mentioned in one of the amicus briefs i believe it was the world vision brief the surfacing being softer doesn't enable religious activities it doesn't allow it it doesn't prohibit it it's really completely separate and apart from it and i think a good example would be something for example one of the things that the court has as i thought about in the past is like computers for education so i guess somebody can make the same argument about computers well it doesn't really it's separate from the religious instruction that might be carried out over those computers do you think that that's the sam or is it different i think it's actually easier than computers because you don't have to get into diversion and all the concept this court has talked about over there over the years in the mitchell case and the other types of cases and here the reason is is that what we're talking about is just a surface it's not even the entire playground it's just a surface that doesn't enable any religious activity so for example if there was a program from a state that said we have a lot of old buildings in town and we're going to we're going to first for fire extinguishers for all of the old buildings including the religious schools and all the schools and they said but if you have a religious school and you use this fire extinguisher reimbursement could they then be able to say now that you receive that public benefit that safety benefit you can no longer include any religion in those classrooms or in the schools oh no my point i'm sorry finish your sentence all my point is i think that would be going too far because it's not advancing or furthering the religious activity it separate and apart from i'm not sure i understand your answer to the playground being used for a more religious activity let's suppose that the public school sometimes uses its playground for things other than children playing whatever they're going to have you know an auction or anything  else isn't 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 non playground activities i think it can and i think that the key here is that i'm sorry you think it can what i think they should be able to i think both the public school should be able to use or for active other activities and i think that their religious school should be able to also and as i mentioned i think the reason for that is it would be a penalty on the benefit to say because where putting up is a safer surface for when the kids play in the fall and that's the main activity here if for some reason someone prays one day there or they decide to go outside for  that doesn't that it's not the government there who is advancing religion it's an incidental advancement that's that's done by the private part you say god all of these questions really one of the virgin to the establishment clause of  extinguishers the bible lesson on a sunny day before because we could go on and suppose you have an earthquake safety program for school or for four for public or buildings with large numbers of people and you have an earthquake  warner forty percent of the cost of structure is earthquake proof i suppose they have earthquake reinforcement for a church and have to spend extra money because there's a window in the shape of a cross that's all these are all establishment problems but they are and interestingly in this case to stay concedes and as did the lower court there is no federal established record see but that's what makes the case for just a little bit in my last article about earthquake safety any problem there with the giving the money to a church and spending extra money for the cross in the window that's all it's for public safety i think it would be an issue on the on the establishment clause the question of the establishment clause but once you get to the fact that there is no established cause problem which is what we have here the question then is can you single out religious people or religious organizations for penalty from this benefit or as this court said in mcdaniel and sherbert is that you're forcing them to choose between exercising their religious faith and receiving  question that means your position is that there's no more stabbers man violation there can never be a distinction based on religion i wouldn't say never we there is an example while playing the what comes to mind is locked versus davy in play in the joints and the reason that's an important one there is because that was a narrow distinction that was based on what this court said a unique historical interest and court also said that the program there went a long way to include religion here it closes religion right out at the door i'm seeing the biggest we did say in th left over after that we'll take other christians and then after that maybe jews and everyone else everything else is the same they want the paving of their playground so if to this public money i believe so because we're still at the premise of of why are we making the church choose between exercising its religion the same facts the mcdaniel versus paty and saying he can't both be a minister and also be a constitutional delicate  missouri interprets the term church in its constitution and speaks about church since i have to be this is a matter of the form of the ownership of a facility is this playground considered to be by the state to be part of a church because of its proximity to the church what if it was this what if we had a religiously affiliated school that was not adjacent to a church and had a playground with they consider that to be part would they consider that to fall within the program i think it would depending on how religious it is and so the what missouri supreme court case law has says number one any any organization that's owned or controlled by a church so that answers the church office controlled that's right and also any religious organizations that are sectarian or denominational and so it's not only the church it's other religious organizations and reserves supreme court case law says the way we decide those questions is is is how much religious influence is there in the church in other words are they serious about their faith do they is it voluntary for the students there and so there's a question about how religious you may be in order to receive the benefit about but it's clear applies to religious organizations and that's what their briefing has conceded and to churches it was my questions about religious uses i think was to get at a broader point a broader distinction and asked ask what you think of it as it seems that you are on strongest ground when you say look the state has decided to fund some activity and it's denying that that funding to a particular party based solely on that party's religious status and that's the way you brief hear you making a different argument or a broader arguments now that extends into a state's decision to deny some uses deny funding to some uses at the same time as it gives funding to other uses and the state's decision to say look we really just don't want to fund religious exercise they can do religious exercise we don't want to fund religious exercise and i understand that you might think that that's out of bounds too but what i'm trying to figure out is is there a distinction between these two things i don't think it's a broader argument that we're making well what i'm trying to communicate is is that when you look at what you're funding so this program says that you can't use this money for any religious activities and it has to go toward the played playground resurfacing so it's actually a reimbursement grant where the church already lays out the finances once or proves it is put on the surfacing then it puts this information in it gets reimbursed for it so the money has to be used for that my only point is can the state then say for example in every state in alan now that we've given you this bus transportation or these books you can't engage in any religious activity once we've given you that separate benefit not that you can't use the money for religious activity which you cannot and we don't we don't disagree with that question you don't disagree with that that's where the state is entitle to say you can't use this money for religious activity and maybe i'll bring you a little bit further we're entitled to take certain prophylactic measures to make sure that you don't use the money for religious activity yes but i absolutely agree but once you take that benefit i think it goes too far to say like in alan for example we're providing these textbooks so you have to stop all really junior school and that's all my point of t records show about non daycare or playground activities on this surface there's there's nothing in the record that occurs except for children playing on the playground excuse me  are talking about luck and this is dissimilar from locke yes well there is a tradition there are thirty nine states with constitutional amendments like the one missouri has that's a history that's even longer than the lock history and the essence of that history is basically we don't want to as a country or the vast majority of states so fun houses  one would think that if there is play in the joints that that would include the concept that states are free to say we don't want to spend money from the public fish on houses  now you say this affects free exercise we seem to be confusing money with religious practice i don't think the two are tied this church is not going to close its religious practices and or its stores because its playground doesn't have these tires so i'm not sure how this is a free exercise question because there is no of fact on the religious beliefs no one's asking the church to change its beliefs in fact no one's asking the church as a condition of saying don't use what we give you for religious purposes they're not even doing that they're just saying we don't want to be involved with the church sure but there's there's government coercion when you say there's a public benefit and the only way you could receive the public benefit is if you do not exercise it why is that a coercion with respect to your beliefs sicko's it's a choice just like mcdaniel versus paid he could not do both things simultaneously he could not mr mcdaniel could not both be a minister and be a constitutional delicate and what the court said forcing that choice could have a playground here but you can't be a you can't be a religious organization have a playground with you you have a playground no one's taking the playground away from you know but you're being penalized by not receiving the public records with it being penalized the priest was being you can't be a priest or a congressman so you can't do one or the other right here and there is nothing being taken away from shore it's the same public benefit you can't be both run this operate this daycare as a religious organization and receive the public benefit what do we to with discrimination for religion under your theory is that because the way you're going in the your theory is an expansion of mcdaniel's  putting aside that it's an expansion of mcdaniel's 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 as effect on free exercise what are we going to do with tax benefits i don't get into with all the exemptions the churches receive shows or benefits church and i would say that the clauses take care of that so for example if it goes too far and the government benefits soley favoring religion it's likely a violation of the establishment clause but we also hear so many of people who would think tax exemption goes too far but i don't i'm just saying there are people who make that clean short and the courts already ruled on that and so on one side you have the establishment clause if you're going too far to favor religion there's a stabs you cause a problem but if you go the other side on the few exercise clause this court has said for decades sometimes we may and even must accommodate religion and i think is the favorable treatment your honor is talking about but i think all the clauses work together in that route if you take it too far you do have an establishment clause problem in this court this case it's conceded there is no it stops because problem and there is a point where you can accommodate religion this other benefit under the free exercise clause but i think they all balance out each other and in this particular case it's not only mcdaniel versus paty but look who me specifically said that if you target religion on its on its face which this policy does then it's unconstitutional and it's true i don't know where those we excuse me i don't know whether we need to get into the history of this particular amendment here i tend to think we don't need to but at the beginning of the line of questioning that just to sort of mine or just finished she began with the suggestion that perhaps this amendment refle admiral ball historical tradition that should be respected do you think that that is the proper way to analyze this question i don't and this this particular provisions that we're discussing they are and this has been briefed by several amicus briefs and  briefly by us is a product of what we would consider to be why of the plane moments that was not found a lot for us davey and the reason for that is that it has that same language in the blame and once it was adopted the same exact here and there is much history showing about the anti catholic one but it's doesn't matter to the deciding of this case as the state courts of the ever said the amendment prevents the state from giving grants or from spending money on police protection for churches they they have not and they ever said that it prevents a state from say having a border guard you know crossing guards or fire protection or health inspections they have not ok as closest to the proposition this is not a move you didn't ask for money did you know you just want to injunction for the future because of the eleventh of may you're going to get that injunction whether you wanted to or not with the present governor possibly and likely temporary and that's temporarily is there any chance he would change his mind yes what well if the political winds change we have we have this policy by facebook or press release or can easily be changed back of political right i see that what case would you case that would be a factor in our decision whether weak our case was an appropriate case to review would in this case it would have to be here i guess in a different posture maybe coming from the other side if that was already the policy i think one of the problems is that the original policy was based on the missouri supreme court's interpretation so what's interesting here is there's already talk that the new policy is immediately going to be challenged and likely struck down by the missouri supreme court so absent a ruling here the the old policy will be back in place and that's why it's important for the court to rule because it's not this isn't a permanent change by any means it's a temporary change in fact the government is actually defending both the old policy and the new policy which i think shows why this court needs to issue a ruling and but i think what's likely to happen under the voluntary sation doctrine especially as this court has said we look at this with a critical eye because of the eleventh hour change is the state free to return to its old ways clearly is not only in this administration but in the new lawsuit being brought to challenge the new policy because it violates why we're here in the first place is the missouri state constitutional provision and i take you back to the substance mr courtman unless anybody it's talk a little bit about federalism and here's here's what i would like to know you know usually when we see these funding cases it comes in a different context it comes where the state wants to give money and somebody is objecting and this case comes in the converse way where a state says we just don't want to fund this institution and you know this these church state divide it's it's a fraught issue it's a hard issue it's it's an issue in which states have their own very long standing law it's an issue in which i guess i'm going to say nobody is completely sure that they have it right and and so i guess there's something attractive about having some play in the joints where states can go their own way and make their own choices and why shouldn't this be one of those cases because i don't think this is one of the difficult case law under sherbert in mcdaniel in the coombe ian smith this is clearly singling out a religious organization with no justification to do so so just having a few exercise violation takes it out of the play in the joints where there wasn't one there i think the other thing is if you're looking at w there is a constitutional right at stake that trumps but the question is how are we going to interpret the constitutional right what are we so so i guess what i'm asking is do you see value in the other side in having some flexibility states to make these sorts of choices i think states have tremendous leeway in the way they set up and decide these types of programs and here's what i would say which i think is an easy solution number one the state doesn't have to set up the program in the first place number two it could set up in a way that say we're all only going to do government schools playgrounds and not only private schools but once it sets up the program to include all not for profits and all not for profit preschools it sets out sixteen different criteria neutral criteria that everyone has to comply with and then the question is when you have a religious organization that meets those criteria in fact does better on them than almost everybody else and then you look at the application and say well we just found out you're operated by religious organization we're going to take you back out of that even though you meet the state's criteria and further our interests better than almost everybody else that seems to be not a difficult one last time an wait late it's on but might the state think that here's the problem the problem is this church has come in with a very competitive application we want to give money to this church that's a you know a protestant church there's a catholic church across the street catholic church applies doesn't get money this happens five years running and people start thinking well why is the protestant church keep an eye on getting the money and the catholic church never gets the money and the state says we just won't don't want to so that kind of division that kind of mistrust that kind of well that sure it sounds like a  question but with that aside for a second if you know the history and context of the program you would know that this is a competitive grant and they actually should be religion blind so if you're not looking at who is applying you can grade this just like this application was graded highly based on secular neutral criteria so anyone knows that the program is purely religion blind not looking at who is applying they'll know that it's not favoring any religious organization or secular but what you do when you favor when you remove the religious organizations even though you've scored them high under your own competition you're actually singling out for for a benefit they should otherwise get on the exercise if and i say thank you counsel mr chief justice may it please the court justice alito asked the question as to whether this is an admiral tradition the should be respected this thirty nine state tradition of keeping hands off of religion and the answer from the state's  is yes an eight hundred twenty missouri's first constitutional convention adopted from jefferson's virginia's statute for religious freedom the language that no man can be compelled to erect support or attend any place of worship we modified that made it more fits within this court's jurisprudence under the first amendment and there we look at both the establishment clause and the free exercise clause in the play between the joints that this court confirmed or recognized unlock the data when you don't want to use a we don't violation and so governor greitens decision to proceed differently does not violate the establishment clause the question is whether that's the limit there are establishment clause concerns here even if there is not a violation and those position for example in this case where we are selecting among churches we don't want to be in a position where we are making a visible physically improvement on church property well the first is quite different than law because this is a status based as well it in that respect is different in other respects it's different as well for example in that case we have an independent decision making which has been key to many of this court's decisions in this court the decision making is not by some third party it is by the state when mr lane you said you don't want to you don't want to have a program that makes physical improvements to the churches and i just wanted to ask you about some federal laws that are highlighted in the amicus brief filed by the union of worth of doc's jewish congregations 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 grant program providing grants through the department of homeland security to hard n harden nonprofit organization facilities that are deemed to be at high risk for terrorist attacks so if you have a a synagogue that is at high risk for an attack by an anti semitic group or a mosque that is considered to be at high risk for attack by an anti muslim group would the missouri constitution permit the erection of vollard like we have around the core here the answer traditionally and i'm not sure that i can speak for the current governor of course i was brought back to argue this case and instructed i could defend the prior position but the asteroid answer traditionally would be no state money could not be used to actually or rock to or our operate or provide that kind of physical addition to a to a church or synagogue ok here's another one i have to more if you'll indulge me  is a federal program that provided grants for the repair of buildings near the federal building in oklahoma city that were damaged by the bombing there would that be permitted under the traditional view of  state of missouri it would not be permitted provided that those were actually church buildings worship buildings ok last one this is a new york city program that provides security money for security enhancements at schools where there is fear of shooting or other school violence again under the traditional view in missouri if there was was actually a cash grant money leaving the public treasury to go to a church it would not be permissible now that doesn't mean that a religious affiliated school could not qualify the st louis university case by the missouri supreme court shows that the missouri courts have been willing to draw the definition of churches and religious institutions pretty narrowly so what is the definition of a church so a religiously affiliated school is not a church under than to the missouri constitution the decision with regard to st louis university was that even though it is a just a what institution that is a founded by jazz of its had a jesuit president and jesuits on this board since i have a self perpetuating board even though i declared a a jesuit philosophy it was determined to be eligible to receive in that instance not direct payment from the state but eligible to receive why why would that be so i suspect because the missouri courts are trying to provide as much assistance as they can within the realm that they feel about the missouri constitution permit or and so suppose we have a school that's run by the trinity lutheran church of columbia and then next to it we have a jesuit elementary and secondary school one would be eligible one would not be eligible it would depend on the nature of the two in fact if the trinity lutheran went back to the position it was in in one thousand nine hundred five where the preschool was an independent although somewhat affiliated entity using the church's facilities presumably under some kind of a lease arrangement the state likely would have said yes because that would be concession even though they're equally controlled by a religious organisation no i don't think it would be a fine line in terms of the control but no if the organisation itself the church itself rather than a self perpetuating board such as he said no money to churches in this state provided police protection or fire protection well big the the state does and i think for a couple of reasons one is that we are not actually taking money from the state treasury and giving it to the church and this court has seldom if ever actually said it's ok to write a check from the public treasury to a church so this we're providing a service and the service there is not being provided solely for the benefit of the church the services being provided for police and fire for the benefit of the public's able to hold that's easy to change i mean we imagine the state state acts and state taxes we're not going to provide police protection we work for everybody but not a church and by the way that costs us extra money we have to hire extra policeman we book ok that's a why not that we don't want we don't we don't want to because they're a church that's why not same with fire protection same with vaccination programs same with public health same with helping children who get sick at school ok you know the hypotheticals are obvious nothing to do with misery but as soon as you answer that i'll be able to 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 that's that's the law in my imaginary state and i'm saying does the constitution which guarantees free exercise of religion permit such laws i am not going to take a position that it permits those laws all right now i 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 and in the church school forgiving going to church how does it permit missouri to deny money to the same place for helping children not fool in the playground cut their knees get this break a leg etc what's the difference the difference is that the establishment concerns that motivate missouri's policy do not apply in the police and fire context but they apply here in health context so if there's an epidemic no i don't know that they apply in health context because the kind of example giving are examples where the bird the benefits are universal they are not selective which they are here they are universal so when we start on the door smith's side in those instances the state is not endorsing a particular church by choosing to provide even though you're sure there is no violation of the establishment no i get it is that we do not want to come to the edge of violating the establishment clause i mean we are not taking a position that we would by doing this but the question you take the position that it is not that this is in violation that the question is do we have to come all the way to the edge of a violation which is what i think petitioners are arguing your value that in that as long as we aren't violating there is no room between this here's the thing there's a constitutional principle it's as strong as any constitutional principle that there is that when we have a program of funding and you know where funding playground surfaces that everybody is entitled to that funding to do that particular funding whether or not they exercise a constitutional right in other words here whether or not they are religious institution doing militarist things as long as you're using the money for playground services you're not dissin titled from that program because you're a religious institution doing with it just things and i would have thought that that's a pretty strong principle in our constitutional law and how honor asked does make sense but the rubber doesn't have any meaning until it's placed there and is available for use and under this theory we not only have to put rubber on playgrounds but don't we have to put new paint on the  devotional theological education and scholarship and others it's you know part i mean maybe you'd have a good argument on the other hand then maybe if you painted the in cheerier of all sorts of other buildings but singled out religious i don't know but it seems to me that that's raises much more serious problems in this case i don't think that locker i think that this case raises more serious problems than lock in a number of respects it is a direct payment to a church is not an indirect payment chosen by someone else it is not available to everyone it's only available to those who are selected but here's the deal if you're right that this is a selective program it's not a general program in which everybody gets money but still the question is whether some people can be dis titled from applying to that program and from receiving that money if they're qualified based on other completely non religious attributes and they're disqualified so many because they are a religious institution dealing with just things even though they're not there they could they they could promise you that we're not going to do religious things on this playground surface and you're still saying well no you you can't get the money well they said they could but that still doesn't get us out of the entanglement issues here we have a church that in order to participate has to agree to curriculum requirements in their preschool the idea that the government is going to dictate what is taught at his church even if they are willing to accept it which they are here agree there has to be a line yes now one line you've suggested is the question that you're selecting rather than giving two and every one universal versus god 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 barring churches i don't think you would but like say the other line the other line which i want to you could to contrast is that 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 has to do with health or safety then you have to do it what about that well that's that's does you would you lose if you win on the first you lose on the second that values are two competing lines that i've met leasing maybe this a modus if the sole benefit to the church and its members was health and safety and we could draw that line that may make some sense but of course that's not true here it's more than that here what we are being asked to give to this church here is actually a visible improvement in their physical plant and i understand that this is a church that declares their petition that they use this preschool to bring the gospel message to nonmembers this belief it's not now your line is the benefit if the benefit is physical that's ok but if it's not it's not no i'm saying is that when you're answer said the issue here is that it's the physical area near the church no i'm  saying that that even physical changes even if they have a safety element may still have an entanglement problem because we are saying to the church you you have this now incentive to rearrange your property your church site in order to maximize the amount you get from the state rather to maximizing the spiritual development of the child if you had a program at the state capitol you had tours for school groups and you had someone who you know coordinated tied into the social studies program school groups can come in but no religious schools he said ok i don't know that it would be we don't know who can be we frankly we have tourists like that you have to have it all the patients and it seems to me that if you can't answer the question whether or not you could perhaps tours for religious schools while allowing tours for other schools i don't understand the basis what your program your position is that the tours at least in our experience are also universal everyone who comes to the capital gets a tour and so we would be that in terms of universal versus selective we would be in that same range but also with regard to entanglement the tours do not require the state to be entangled in any way with the church and its ministry and the playground improvement here does require that not just us to curriculum but as to the manner in which this is done and the way in which it is portrayed to the community that's the kind of entanglement that would do you mean the way it is pro trade to the community well among other things in this particular program the church gets points for telling the people in the community that the state paid for this improvement to their church and so this in essence it exacerbates the indorsement problem by telling them what they have to say publicly about this particular improvement i mean this is you could say the same thing that the church is delighted that it has fire protection well here i suppose if we said we'll only going to provide fire protection to churches that will declare publicly that they appreciate the states provided that maybe but again that's not selective in so that that statement by the church has no meaning it can't be perceived as endorsement but when i drive past this church and this church has this beautiful new playground surface that the state paid for i am receiving a message with regard to the state in this particular regard and so long is that the money is granted based on neutral criteria that are faithfully applied i don't know how you can draw a distinction between a program that's open to everybody and the selective program suppose maturity offered fifty full college scholarships every year to students who achieved certain academic criteria who satisfied certain academic criteria and this was open to public school students and private school students but you know after a few years the then the state saw that a disproportionate number of these were going on mungo's given to the religiously affiliated to the private schools and disproportionately were a member of the scholarships were going to students at schools that are affiliated with a particular faith would it be then justified say well we better not we better disqualify every student and went to a religiously affiliated school so that there aren't any hard feelings well i think that may be an equal protection problem because i don't the the the basis for what's the difference between that situation and the situation well here is the difference between selective amaan selective if we're going to deal with the equal protection approach to this then the question becomes whether our indorsement entanglement concerns are a rational basis and i'm not talking about equal protection here you said there's that the matters that this is elective as opposed elective and what is the basis for drawing that distinction i thought that i thought you asserted basis was it prevents fear that the perception of favoritism yes it does because this is a very selective program very few institutions get it and unlike the scholarship example this is a program open to everyone happens to be a competitive program but everyone is open to compete on various neutral terms and you're 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 we are concerned about the ad norseman and entanglement issues that arise in connection with this type of a program yes and those who are interested i don't mean to say that those are not valid interests but it does seem as though this is a clear bergen looked at that way this is a clear burden on a constitutional right and then your interests have to rise  lehi level well i don't know that i heard in our constitutional right in other words because people of a certain religious status are being prevented from competing in the same way everybody else is for a neutral benefit well that this is it's not like mcdaniel where someone is being barred from participating in the life of the king of the community this is a kind of the opposite of that it is not  like the what we have in walk in the sense that that here we have i mean we really have a direct payment to a church i'm not sure i'm not sure i'm answering your question your hon that your adversary is taking isn't his appointment if you creating adversity that doesn't exist well i don't know the answer about that but let me let me give some of the factual background here the attorney general himself is rykiel because he actually appears on one of the briefs on the other side the first assistant in this instance is the acting attorney general and the acting attorney general at a time before governor the governor gave his new instruction  asked me to defend the position because of that point it was still the position of the state and was not being disavowed but that's the question it doesn't a theory should be the position of the state right now reading through the lines of the acting attorney general to us it doesn't appear that he believes that you're taking the position so so so let me talk about what has happened and what what happens next after the governor made his announcement the director who was my client here in fact put up on her website the twenty seventeen application and twenty seventeen instructions in which she'd largely tracked the twenty sixteen  prior ones including two thousand and twelve that the court has but eliminated all reference to churches religious instruction all of those were eliminated that's all i know about what she intends to do because i don't represent her with regard  a simple question if she is the state and she is the representative of this they are not willing to fight this case on the manufacturing and first city by appointing  church if she does then under missouri's liberal taxpayer standing rules someone can then sue and say you are violating the state constitution and if there was a terminations that that she was violating the state constitution then the question before the the court today would have to be answered are you jewish agree that this court's voluntary sation policies apply to the mutinous question i agree that they can apply to this it's not a perfect compared to some of the process once but but certainly there is no assurance that four years from now with a change of administration or at some point in the interim through a taxpayer standing suit that there wouldn't be a change in back to the prior practice is too late and i'm struggling still to understand justice kagan's question the answer to it how is it discrimination on the basis of religious exercise is better in selective government programs than general programs first and second how do we tell the difference between the two that's the line we're going to draw the tour's isn't selective based on who can show up at the capital and afford to do that public benefit programs are they often selective if you meet criteria copyright laws you have to have an original work things like that we do about those problems well i mean i still maintain my position that when we have a prince a case where it is a selective program that is publicly announced publicly of visible that that is different from these other kind of program and how do we draw that line between selective in general one can seem to play with that line forever while one could just like the rest of the lines in this case we don't get to a fine line of discrimination the basis of status of religion there's no doubt no line drawing problem there we know that's ha ppened in this case right we do know that the decision here was made because it was a church and assuming that's what status means then i suppose we we know that i mean that's true if you say if you make that the law and selective versus universal if you like well you can reproduce the same problems volunteer fire departments most places but the state give grants to upgrade the upgrade we don't have enough money so we have selection same with police you have crossing guards you know you have dangerous intersections they're 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 that's what i see as a difficulty we choose your line there and we proliferate litigation forever well i let me make it in areas that are critical like police fire health police fire and health when they're universal but you gave the crossing guard example yeah i knew that it was very that look ok so universal of course that's my problem i can reproduce programs in the state that seem absolutely necessary for police protection fire protection health of children and it seems like an irrelevant factor with the just opened everybody to apply you automatically get it with you have criteria and are selective because you have a limited amount of money and you want to make that line the constitutional line on free  exercise i'm afraid of that when now i put that out so you can reply well that and the answer would be that the line is some combination and i can't give you a bright line because you're rejecting the bright line that we have some kind of combination of the endorsement problems with c like tiffany and the entanglement problems that come when we're 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 determination maybe the requirement that we pull lease they use the funds and what the funds here put on there without becoming involved with the church there's a statement in appellant's brief that says that the church is told that it can't participate in the life of the community but what trinity wants is to have the community participate in the life of the church and that is anathema to the kind of basic doctrines that we get out of the founding era that provided for a divine mission why would it be on the basis of the physical plant as opposed to say personnel or non physical grant money why wouldn't what be one now the line is moving now it's apparently on the basis of whether we're getting the money to the physical plant were to some other purpose well i'm not i'm saying that the physical plant is our case because the physical plant is a eight improvement to the church property that the church will use and may use for actually proselytizing and not just use it for religious activities and that wherever the line is that ought to be on the other side of the line just like wherever the line is writing a check th 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 here take care of the endorsement problem so when you have this competitive grant that you have to fill out this this this pretty complicated application sixteen neutral criteria there is no indorsement of religion i think the free speech cases give a good analogue to that number two as far as the selective  universal government benefit program i don't think that is really the test here and the reason as your honour's mention if this was open to all schools and it was universal they still would be prohibited from giving a grant to the religious organization so whether it's a narrow class of all non for profits or a broader class of all schools they would still not be able to fund based on their constitution and lastly as we talk about entanglement this is not an entanglement issue intendant generally is an ongoing intrusive surveillance it's not a one time grant where you have to show a receipt for the expense to receive the embarrassment if there are no the questions my time thank you counsel the case is submitted