constitution allows the wholesale exclusion of religious schools from scholarship programs it does not yet montana's blain amendment requires that exclusion as a result the blain amendment discriminates against religious conduct beliefs and state is in violation of the free exercise clause under trinity lutheran the montana supreme court disagreed that court held that barring religious schools from the program did not violate the federal constitution this court should reverse that judgment even respondents now concede that excluding religious schools from the program is unconstitutional but they argue that the court of voided this discrimination by invalidating the entire program this is wrong the only reason the court invalidated the program was because it included religious schools and the courts remedy did not cure its discriminatory judgment nor should the remedy shield the judgment from review petitioners brought this lawsuit because they were denied scholarships based on religion and they are still being denied scholarships based on religion if the court had shut down the program because it included muslim schools or african american schools there's no question that would be unconstitutional we ask you to reverse respondents are in the alternative that law allows them to exclude the religious schools and that this case falls within the play in the joints but that would allow the exception to swallow the rule as trinity looser and made clear the rule is religious neutrality and law only a narrow exception we argue that locke is the exception that proves the rule intro to the lutheran may i ask  you some st two questions about article three standing under the montana judgment he's parents are treated no differently than parents of children who are going to secular private iran or the montana supreme court lacked the necessary predicate for leveling up or for a leveling down because they got the federal supreme court question wrong but forgetting that question wrong we would never have moved on to the issue of remedying that problem because it would be a center constitutional  problem but there's another serious problem and that's the parents on not tax payers fast payers are the people who contribute to the student beneficiaries are the parents like our clients who are enabled to exercise their constitutional right to challenge attack that s of someone out there no no your honor it's because the montana supreme court has an extended there blane amendment to include scholarships that are generated by the giving of tax credit i'm sorry it is there any case we've ever had where we've recognized a tax a party who wasn't either the tax payer or the direct recipient of the taxes benefits of the taxes so here the parents not just aren't the tax payer they're not the schools that receive the money neither are they guaranteed receipt of the money we're told that there's less money than applicants so there are like three levels removed in what other case can you cite for me have we permitted such a removed party to have standing your honor i don't think that we've had a state constitutional provision ever be applied in such a name it doesn't matter they did we had we've had a case involving schools that discriminate and we've said that those schools that taxpayers are not taxpayers that individuals who feel affected by that discrimination don't have standing because they're not the people they're not the taxpayer and they're not the recipient of the discrimination directly so i'm having a problem understanding why you have standing either for the tax payer or for the school who receives the money well and why you have a lot of contingencies others that taxpayers won't give the one hundred and fifty dollars without the tax credit that the school will actually pick them up and that even if picked in the past that they'll be picked in the future seems a hollywood level of contingencies so mention one case that any case that involves article three standing where the intended beneficiaries of the program the schools are and the beneficiary i respectfully your honor i disagree the financial benefit from a scholarship program is to the families the families receive the benefit of the scholarship the scholarship is used by the families that incentivize people to give money yes your honor it does incentive farai donations that's its purpose and it actually succeeded while the program was growing in awarding scholarships to two of our three client families had and you know that it would have been the same situation after all this is a small credit it's one hundred and fifty dollars and if they don't get the credit if in the kitty if the credit is removed but the tax deduction remains untouched and i'm looking at writing this allen in eastern kentucky and i just don't understand how this pacifist standing borrowing those didn't well your honor the simple fact that it is that our clients received scholarships under this program which was a financial benefit to them  the tax deductions are not a financial benefit to the taxpayer because they are out one hundred and fifty dollars whether they pay their tax to the state or they donate one hundred and fifty dollars to the scholarship organization there's no financial benefit to them it's kind of a psychic benefit but it creates scholarships it really created scholarship mr coleman can i go back to  ginsburg's st question and i don't know whether to call it standing or mootness or anything else but i guess i am having trouble seeing where the harm in this case is at this point it's a strange kind of posture where in but if you would describe to me what is the harm that the parents are suffering right now currently well right now their students two of the family students are on scholarships and next year they won't great but i generated by the program i'm sorry to interrupt i guess what i'm saying is that because of the supreme court's ruling whether you go to a religious school or you go to a secular private school you're in the same boat at this point so i've always understood in these kinds of cases that the harm is the perceived or alleged or actual whatever you want to call it discrimination but there is no discrimination at this point going on is there yes there is because the discrimination occurred in the judgment of the montana supreme court which considered a federal question which in both are affected in the exact same way that's because the ram mini you can't let the remedy to shield the discriminatory judgement the discriminatory judgement is in mistakenly believing that this plane amendment and the application of it did not violate the federal constitution if they got that question right we wouldn't be here because the program would still be going on in our parents would be i'm sorry how could that be meaning do you are you taking the position that as a matter of constitutional law the montana supreme court constitutional provision is unconstitutional that that states are forced to give money tax is unconstitutional meaning that i'm in the constitutional provision time is constitutional provision is unconstitutional and hands constitutional provision violates the free exercise cla on its face on as applied to this program so you are say that states are forced to give money both to secular and religious schools it not to the schools this is a case about giving the money to the families it's not a case i don't like i think secular and religious families yes if they give to one they must give to the other hand the state choose not to give at all yes all right so let's if you start from that proposition the montana court said we don't have a law and now don't give to any so let's assume that the montana court did what you wanted it to do and said this is unconstitutional under the federal constitution and it's unconstitutional under  montana constitution which is what i think it did by the way said it's unconstitutional on your books even if it didn't say it but let's assume it's assume it says it's unconstitutional no into the federal constitution you're saying they can't say separately it's unconstitutional under the montana constitution they have to keep the program a life in the circumstances were dealing with your honor they terminated the program i'm not talking about the circumstances list soon their opinion was written exactly the way you want it to be and they had said this  the federal constitution but it also violates the montana constitution so instead of leveling up the way just the skin's burke said we're going to level down that way it doesn't violate either of them if we stop the federal violation because we're not discriminating against the school any school and we've now not f the colorado constitution can they do that are we talking about the court doing this who are two in this can the court do it you know because when you have a constitutional conflict between the aid and it has been stopped from giving a nod to our client well it chose to give it consistent with the constitutional amendment and and and the constitutional amendment sets restrictions on funds and as a result of the restrictions on funds that the constitutional amendment set in this case which i have always understood to be a challenge to the way that the constitutional amendment operated on a particular program as a result of this challenge what has happened is that neither the parents who want to send their children to religious schools nor their parents who want to send their children to secular schools get what they would like to get so they're both being treated the same way only as a result of a mistaken understanding in the free exercise clause or under law we don't  i mean we don't usually sort of grade every line of an opinion usually we look to an opinion we see and there's a decision below and it's had a consequence in the world and the consequence of this decision is that there is no discrimination that neither that neither set of parents is getting what it they want now you might say well both should get what they want and maybe that would be a better world maybe but the constitutional harm that it seems that you have to allege here is the discrimination and there is no discrimination your honor there is no discrimination because the montana constitutional p vision requires discrimination on its face and as applied to our clients and if i him point out this is in this incision about harmonizing the two constitutions because the montana supreme court did not recognize there was any conflict between them that had to be harmonized ever also alito you know i just wanted to ask the simple question under our decision and village of arlington heights is it constitutional for a unit of state government to do something that it could do but if it does it for an unconstitutional discriminatory reason mr chief justice and may please the court the montana supreme court held that the montana constitution requires religious discrimination that the federal constitution forbids parents may not direct scholarships to schools solely because those schools are religiously affiliated to the state doesn't offend that error of federal law but says it was washed away when the court invalidated the entire program and left everyone empty handed the montana supreme court had no power under federal law to invalidate anything it relied on the state constitutional provision that is inconsistent with an preempted by the federal free exercise clause and crucially petitioners continue to suffer from that federal free exercise violation were guarding us of wh other parents received scholarships or also suffer as collateral damage if the montana supreme court had invalidated this program because it included historically african american schools or all girls schools that would be a straightforward equal protection violation nothing about it money would go to the schools not to the parents and we don't have the school in this case well but i think that's really getting at the standing issue mr chief justice and they're losing their scholarships at the end of the school year as i understand  they've had them for years and under the court's decision they lose them at the end of the school year so even i don't take the state to be challenging article three injury and so then it's just a question of whether they're raising their own rights and they are because the reason they're being screwed from the program everybody would say the answer of the question why don't these parents get the scholarships because they want to direct the scholarships to religious schools their free exercise is being penalized or not raising a right on behalf of the state everybody concedes that of all the parents in this program had wanted to choose secular schools there'd be no basis for the state's cour ruling scholarship program would still exist it's only because some parents said i want to send mice kids to schools like stillwater and at that point at page thirty of the petition appendix the state supreme court says we have a state constitutional guarantee no state funds to religious schools that's what it says and that's a straightforward violation strider law are you claiming that what you're calling plain amendments but that the montana provision and all the other states that have done madison a lobbying heavily for the free exercise clause and equally to stop states from both establishing religions or using public funds to support them there's been little over since the founding fathers a long history of people who are nondiscriminatory reasons but for reasons related to their belief in the separation of church and state that have taken the position that the state should not give money to religious institutions so you're suggesting now that montana in one thousand nine hundred and seventy two went through an empty exercise they looked at the history of this amendment to one mike it said it was odious admit it some of its people who voted for this bill in seventy two said it was a despicable history but they then looked at the founding fathers writings they looked at the state of montana as religious tolerance which had changed dramatically from the blame amendment era and decided that they were going to side with james madison one of the fathers of our constitution and continue to say we don't want  perhaps you could comment counsel just assume or that was one of two points i was hoping to make on the merits before i sat down every time that the state points to that in its brief and i think most notably pages thirty and thirty one and what madison was talking about in the margins were compelled support laws preferential aid to the church even the state admitted ph thirty other brief and these are the states words there is zero founding era evidence that there that you could have a generally available benefit and deny it to an institution based on its religious character or about justice thomas i think walks through the history of the opposite in his rosenberger concurrence that at the time of the founding when they gave out land in the northwest territories and other statutes for the schools they included religiously affiliated schools i think actually the tradition that dates of the founding is sort of the opposite that you can't disqualify them just based on the religious character but you can have no compulsive port no preferential aid to the church and that's very different from what's going on or what did you think of this like i'm having trouble and i want you to come in if you really think about this problem which has been probably an answer that you will fought about ok say in san francisco or boston or take any city or state and they give many many many millions of dollars to the public school system and a lot of them give a lot of money charter schools now they don't give money  to catholic schools right now if we decide you're right does that all change well you know in certain respects it doesn't change just as prayer they don't if they want to open up the funding they can put limits secular suspect they might spend money on charter schools yes let's call it a nother five hundred million they do not i'm just repeating myself expend money on the catholic school system now there's nothing immoral about that that's just the what they do and and that's comes from the constitution or if i decide it's the same question if i decide for you i'm i saying that they have to give money to the same amount proportionate to the parochial school if they structure the benefit program the way they did here or the way they did no no no i'm saying the way they do do it not the way if they did it here and if they are giving out generally available public benefits for people to go to private schools oh it's a private what why is it that they have to be equal with private but they don't have to be equal with public know when you said charter schools i took those forget i've charter schools same process if a city or state gives out fines for private education which is not required to do it can limit its funding to public schools but if it gives it out and it gives it out just for snow i hypothetical was they give it out in called the public school system of the united states i'm saying that's what i'm talking about now what's your response what's the difference between this case you win and the same with the public schools they have to give it to parochial schools what's the difference or surprise or what i'm saying is that in the last paragraph of training lutheran when the court said you can't deny a generally available public benefit to an entity that's otherwise qualified being soley on its religious character or nature so mr that don't rule applies equally to schools as to pla i mean there seems i was one of the seven in trinity lutheran but there seems to me a real difference in this case in trinidad lutheran the state was using the religious status of various people or entities to limit access to a unrelated public benefit to a completely secular public benefit now here it seems to me that what the state is doing with respect to these educational programs is to say  we don't want to subsidize religious activity we don't want to subsidize religious education and further because of the way that the supreme court issued its decision that will mean that we don't want to subsidize any private education so you have both the nondiscrimination as to that but even put that aside what this is is essentially a state saying for many reasons that have been viewed as legitimate even though not shared by everybody but have been viewed as legitimate for many years we don't want to subsidize religious activity in particular religious at education that's a far cry from trinity lutheran so your question gets a put the two things i was hoping to say one set down the st is all we are asking the petitioner are asking is that you do what you normally do when you review a state supreme court decision that page thirty two of the paired up it said no problem with federal law it got federal law wrong if it come out correctly on the federal law question nothing else in the decision would have flowed the trial court would have been affirmed and everybody would go on scholarships that would the application of the state constitutional provision which was preempted undertrained lutheran was the only basis to i state law so you should reverse the federal air and send it back on the merits of your question look i get that you can say it's a harder case because it's reservation it's not a playground and in that sense it may be a harder question but the montana supreme court didn't take it as a case about use didn't try to say this was covered by d v or any of the rest it said religiously affiliated schools that's a status based stinks and i don't think we can distinguish that from trains and i think you counsel mr chief justice and me please the court the constitution does not bar the state of montana from acting and applying a state constitutional provision that keeps its own state legislature out of the business of funding religious schools the new it cost is not to prohibit anyone's free exercise of religion to the contrary it protects religious freedom by protecting religious schools from government influence and ensuring that government cannot use aid as leverage to influence the content of religious education petitioners attempt to this case to trinity lutheran but the analogy is inapt for two reasons the st reason is that the coercion aspect of trinity lutheran which is crucial to the court's decision was absent here in trinity lutheran the church was put to a stark choice either abandon your religious faith and become a nice secular stone building with a daycare facility and you're going to get the money or stick to your religious faith and you won't get that you won't get the money and that coersion was the premise of the court's decision that there was a penalty on free exercise that's not happening in this case where the state court held that montana wasn't even capable of knowing whether a particular parent would use money for religious and non religious school and therefore held that regardless of how the money was spent there wouldn't be a tax credit the nd distinction from trinity  lutheran involved the refusal to give money to a church for a completely non religious purpose merely because it was a church this case is different in that the state is simply declining to fund religious education the state court did not hold that under the n religious schools would be denied funding for non religious purposes so let me start with the standing point which came up during the st half hour so we didn't as the court knows it's an amicus brief but we didn't make the argument in our brief because we concluded that the arguments really went more to the merits rather than standing we i mean we believe there's an attenuated connection between the state action here and petitioners free exercise of religion but petitioners are alleging in their brief that they personally are the victims of status discrimination because they are christians we think that's wrong based on what the state court actually did but historically the court house doors have been open to make that kind of argument we think on the merits there simply isn't a prohibition on the three i keeps us i'd like to get back to justice briar's question and get your view on it which i understood and to be that why doesn't do you think the other side's theory leads to a situation where the funding that goes to public schools if they prevail would have to go to religious schools well i mean i'm not sure of the exact breadth of their theory i mean there's a number of amicus briefs that that make the exact point about let's take it to be just that i mean this is a case about money and the question of whether or not it must go to religious schools and i'm wondering if the public the funding of public schools is the same is the situation involved here in your in your view i guess i don't understand petitions to be making that argument in this party or not but that's what bit it still can bother me i'd like to know if in deciding it for them if i do that i have made a major change in the public school system i understand one's private and the other is public and what i'm asking for you or them why would that matter what that is why would it make a difference if you have to give i mean i don't jump on to my arguments a great support to i'm not making an argument to support you i am asking the question to find out the answer  well i'm not sure exactly how far petitioner's argument would lead but i do think that one important point of this in this case is that states generally have had power over education and to decide that they're only going to fund the public school system and that is the ultimate effect effect of the state courts judgement  wonder if if there's a difference in the sense that the between general funding of the public schools and the decision to provide aid to private schools except not religious schools well so i think that you know the question in this case ultimately boils down to whether the striking down of the program because of the new age clause just in and of itself is a violation of the free exercise right of petitioners and you know the st half of the argument involved a number of questions about how petitioners are really harmed if the program as a whole is struck down and i think i heard two sets of arguments from the other side from petitioners both of which i'd like to address one argument is the sort of broader argument that just a new way to clause is just constitutionally defective like by its very nature because it is discriminatory  of being applied and therefore the court should just be manned and tell the court you just can't apply this illegal rule and the nd argument i heard is this somewhat narrow argument that as applied to the problem here is that the court excluded religious schools from a general program as in trinity and so if i could just address those those two theories of the case by petitioners so i think the st argument really is tantamount to an argument that the new way causes facially unconstitutional because like every single time you apply the new it clause the rule it recites is that religious schools don't get money because i thought they were quite clear that they were not arguing they were not making as a facial challenge right to challenge as applied to the particular situation here right so if that's the discriminatory to say because something is really well they're not conceding that they're just saying you have to consider it as apply here look i think i like your reaction to this way of looking at the case maybe it's right maybe it's wrong it is a violation of the federal constitution if a state supreme court bases a decision on a ground that discriminates in violation of the constitution do you agree with that i would agree with that but obviously the question is whether it discriminates in violation of months until last part of that look i'm not i don't object so and then the argument is if they stay out they don't have to fund public private education at all but if they choose to provide scholarships that are of they'll of all to students who attend private schools they can't discriminate against parents who want to send their children to schools that are affiliated in some way with a church that is the simple argument and it's hard to see that that's much different from trinity lutheran  think it is completely different from trinity so look i'm not going to object to the general premise that you're offered that if there's like a legal rule that just the very application of the rule is constitutionally defective then you can reverse the state court decision and i'm not going to fight that proposition as a general matter but that's not the question here i think the question here is whether the state may apply no wait clause and i think that the answer is yes because if you accept the premise that the way counsel wouldn't shoot in terms what you're agreeing with justice lea just want proceed little bit further and let's say a state court decision could be consistent with a constitution or not consist of the custom to show what the outcome may or may not be if the if the decision rests iranian interpretation of federal law and remedying that error could provide relief we have a case telly in principle if we assume there's an error of federal law in this assuming there's an ara federal law and that remedying it here might provide relief to plaintiffs we have a case so i think that this as a general matter at a high level of generality if petitioners identify an error of federal law in a lower court decision i think th adjudicate the earth ok so the question really becomes do we have an error federal law right now but the question is what becomes an error of federal law so i pose suppose the state said we're going to allow the scholarship funds to be used for secular schools or protestant schools but not for jewish schools or catholic schools but unconstitutional yes i think that's a yes yes yes ok so what's different when you say the scholarship funds can be used for secular schools but not for protestant  jewish catholic or other religious schools because of the religious status so i think the right lens to look at that hypothetical is the establishment clause which prohibits the state regardless of whether there's an infringement on any individual liberty i think the establishment clause prohibits the state from distinguishing between one religion versus a different religion and i think that's an example in a lot of the free exercise equal treatment cases going back to everson mcdaniel so you can't exclude religious people religious institutions religious speech because it's religious from a generally applicable program it's a fact the truth it's odious to the constitution to quote the words of trinity lutheran so why isn't this excluding religious people telling them that they're not entitled to equal treatment under the constitution why isn't that a violation astray violation of the trinity lutheran principle which goes back to everson because why is it different from the other hypothetical i think the state has a choice right it's not allowed to tell people we are going to penalize you for x exercising your religion but that's a prohibition i think that the core inside of a case like trinity lutheran is that there's no difference between the denial of a benefit and a fine that's a prohibition because you're actually penalising the decision to exercise we legion that doesn't mean that the state has to fund religious schools and it also doesn't mean that the state can't just apply a principled view that it doesn't want to get involved if europe is europe running a scholarship fund and there's a group of people lining up for the scholarships are you secular ok you can get it are you catholic no you're out because you're catholic yeah that's exactly how it's not doing a house consistent with the principle set forth in trinity lutheran your justice brennan's concurrence and mcdaniel i think that's exactly what the state court ensured wouldn't happen it's not just a matter of like with the predicate was that that kind of discrimination is it does not violate the federal constitution  i think that the state court can say look as a state we have no way we have a principled objection to funding of religious institutions but we understand that this sort of classification of coercing people into being secular is a penalty on religion so to b two interests we're going to simply level down and i just want to be clear we're not defending religious bigotry here ok i think no way clauses have a principle justification especially in modern there are certainly rooted in in grotesque religious bigotry against catholics and i think that in the eighty's there was undoubtedly grotesque religious bigotry against against catholics i don't think that's now down to seven or motivation for this no not that's not true nine hundred and seventy two constitution which is where this provision was enacted i don't think there's any evidence whatsoever of any anti religious bigotry i think yes or no i'm sorry no i want to see if there's any real difference between this and try to be lutheran so what the excuse me what article ten section six of the montana constitution says that there can't be any aid in director direct to any institution school or other institution controlled in whole or in part by any church sect or the nomination so if you have a school that has board of trustees and one or more of the board members of the board of trustees ex officio are members of a religious body that would seem to provide control in part with that be sufficient to the montana cost to sion without looking at all at the nature of the education provided by the school no i don't think so that's not how the state court is construe the constitution where since said where has it said that construed that's controlling in part so if you read the lower court opinion there's all this language about how the real problem here is that the money is going to the school which is going to spend it on religious education while they're knocking about schools in general how do they know what schools they're talking know they're saying that and that they're not talking about schools in general there's all this language saying that money is going to go to school and therefore the month the school is going to spend that money on explicitly religious education if i get a step back look i'm agreeing that the lower court opinion is not completely clear on this i mean part of the problem is i think that this challenge is really changing this court and lower court it wasn't a no a clause that was really being challenged it was the rule and so i don't think i think the state courts in general should be entitled to adopt women in constructions of their own state constitutions i don't think the state court had the chance to do that here because the argument wasn't really raise and i think would be a little unfair in this court to sort of assume the broadest possible interpretation of the state constitution just for purposes of of what invalidating it emily i ask you a question let's go back to the constitution yes because rule one does because it permits secular schools but not religious schools from receiving the scholarship i know you take as a defense position that they can do that uses the montana constitution to level down that it is unconstitutionally active that it is using religion to level down how do you answer that argument because it has that's exactly what we were told in a question which is they are basing the leveling down on the basis of discriminating against religion so i think that the answering of that question requires a kind of focus of analysis of exactly what the constitution allows but alright so if you accept the premise that rule one is unconstitutional because it discriminates it's a secular schools and and religious schools out that doesn't answer the question of whether the new york application of a new way to kweisi does not lead to a judgment with that fact is also unconstitutional so i think the crucial point in this case is to look at what the state court did when it appl no it's not the crucial question why the state court did what it did if it did what it did for and unconstitutionally discriminatory reason then there's a problem and the village of arlington heights give you an example  e state legislature sets up a scholarship fund and after a while people look at the recipients of the scholarships and some people say well these are mostly going to blacks and we don't like that and that's contrary to state wasow the state supreme court says ok that discrimination is we're going to strike down the whole thing is that constitutional so we don't think the race analogy is that i don't think that's constitutional and we just don't think that race and religion are identical for all constitutional right there is that what he's saying is that look the court took the case in the prison prince edward county yes or the equivalent and said they couldn't do that they can't shut the state says different and i'm not saying it isn't i want to know your reason why is it different ok tried the opposite extreme the state says we will pay for the salaries of if they're mohammedan but not if they're brutus unconstitutional right yeah ok so why doesn't it also violate the constitution or the state to say we won't pay the salaries of any civil liberties violation it's just contrary to principle to disestablishment principles to say that we're going to treat one religion ok i got it back so what about the other part where we said look you can't discriminate against all religions by not giving them playgrounds or you can't discriminate against all religions by refusing to give them police protection or fire protection what about that part so there's two differences between that case and this eleven dollars is the striking down of the whole program which we've talked about throughout the argument today and then there's the nd point which hasn't really come up which is sort of the lucky davey distinction between a declamation to find religious education and refusing funding merely because someone happens to be religious for a completely non religious purpose and i think that can i tell as you back mr unocal skate to the striking down the whole program because a number of people have suggested that that must be motivated by animus towards religion and i can think of many reasons why you would strike down the whole program that have nothing to do with animus toward religion you might actually think that funding religion imposes costs and burdens on religious sect institutions themselves you might think that taxpayers have conscientious objections to funding religion you might think that funding religion creates divisiveness and conflict with in a society and that for all those reasons funding religious activity is not a good idea and that you would rather level down and fund no comparable activity whether religious or otherwise then fund both now none of those things have anything to do with animus towards religion would result why why does that explain why the race analogy is inapt i mean the legislature may say that they've built parks and pools and they say we're funding those but if a higher percentage of african americans come and use the pools they're going to shut down the whole program and you wouldn't defend that and saying they could have a judgment that it decreases tensions among the different races to keep them you know you would just look at the facial discrimination right  conclude the fact that they that wouldn't be good under your view would it of course because we're shutting down the whole moral ground we're no how is that different than religion which is also protected under the st amendment because i don't think that race and religion are identical for all constitutional purposes right but look if the state constitution had a provision saying that like historically black colleges aren't entitled to any aid at all that would obviously be facially unconstitutional you would even need to get to these as applied challenges at all because i think th i'd like to give you the chance to do that so the answer is i think that if you accept that no it clauses are not facially unconstitutional and i think it's a very hard argument to make for all the historical reasons they've existed for such a long time then you have to accept that it's at least permissible for a state to say for principled reasons deeply rooted in national tradition dating back to madison we have a preference to not fund religious activities not prohibited but not funded but there's a difference between saying we're not going to fund religious activities and saying we're going to discriminate based on religion that's the point that in the state nobody is claiming the state has an obligation to make particular grants to religious institutions or to provide any funding for private education at all the question is can they if there is a program that is that's is designed to serve certain purposes can they discriminate in the application of in in the up in the deciding who's going to get the benefit of that on the face that we prefer not to fund religious activities for good reasons i'd like to explain in just a nd ok now we're constrained by anti discrimination principles from coercing people into a banding their religion so if we have these two principles these principled non  bigoted and historically rooted views that we don't want to fund religious activity on the one hand and the st amendment which clearly guards against coercion and penalizing religious faith on the other the way we're going to balance it is to do what the state court did and i just want to say one thing about that to do it the s similar arguments the ones he made and in one hundred and seventy two dollars with the delegates basically said was that they conceived of the no it causes mechanism of protecting religious schools from political influence so to prevent government from using its leverage to influence the content of religious education there's like a lot of leaders of religious denominations who came forward and testified in favor of the new way clause for that exact reason and i think it's very clear why that justification applies a complete force with respect to this program right because basically what you're saying the difference between this and race is it's permissible to discriminate on the basis of religion it's not permissible ever to discriminate on the basis of race that's what you're saying i mean look it seems to me that when you talk about discrimination we can mean two different things one way of looking at discrimination is to say that just that you can't have a rule that treats religion differently from other subjects which is i think the core of petitioner's argument and they say look at the new way because it says religious schools are ineligible and it imposes no comparable restriction on anyone else and therefore that's just discrimination and it should be wiped out of the state constitution so if you buy that argument then you're basically saying that like every new way crosses one thousand eight hundred and thirty dollars five's unconstitutional even at the founding the all the state constitution said things like a tax won't be levied to build a church that's a discrimination right that you can levy a tax to build a bridge to not show i mean i don't know about every every no a cause in the country they'd all have to be examined separately if and if in fact they're challenged a lot of them look you i'm not going to get into an argument with you about what happened in one thousand nine hundred and seventy two but do you really want to argue that the reason why a lot of this popped up beginning coincidentally in the th forty's at the time of the irish potato famine they had nothing to do with discrimination based on religion i'm not saying that they know i'm not saying that at all i think that the history in the united center is very complex like there's a presser greene is a leading scholar on this wrote a book that both parties say which basically says it's a complex history and there's good reasons and there's bad reasons and it depends on the state and look i don't see how montana guard you saying that are you i mean i don't know can we can you or could i say this yes race is different from religion why there is establishment clause in regard to race what is the establishment clause well it has something to do with not supporting religion and there is nothing more religious except perhaps for the service in the church itself then religious education that's how we create a future for our religion now there is some line there and that line may be what i've just suggested impermissible under case law of this court or it may be permissible but unwise you'd like to draw the line explain that ok so i think that you know we haven't talked about analogies to lock at all i just like this if you words about that what i think which i think are consistent to your question so it's true that are factual distinctions between this case and law right luck involved training for the ministry in this case involves secondary education so i'm not do not i'm not saying there aren't of course with each other but the question is whether that distinction can be located in the free exercise clause because really you know it's true that law involve funding of the ministry but i think this case does too right the ministry of teachers towards their students and i think petitioners have a somewhat revealing just as this is a school and education they're satisfied the compulsory education walls of the state correct that just funding religion funding for religious schools generally or training of clergy is an establishment clause concern with this it's a separate issue when you set up a neutral benefit program police fire or scholarships and allow people to use those things allow religious institutions to obtain the benefits of those things on a nondiscriminatory basis and the question in this case it seems to me is which side of that line this comes on is that the proper way to look at it and if so why is it come on the funding saga i guess i'm not really sure because that's the right way to look at it i think that it's important to just look at the interest the no a clause for tax understand whether those are just unconstitutional and whether they apply in this case so as i said the no a clause was concerned about using government leverage to influence religious education and it's very easy to see how that can happen in the context of even a neutral program like this one it's taken to have a can do you think that was the design of  to help religious institutions if you look at the transcript one hundred and seventy two that is what it is all about there is numerous religious leaders who came forward and testify that that's the reason they want to on the floor of the convention in one hundred and seventy two the strongest proponent was delegate harper is not an anti religious bigot he was the pastor of a church in helena and he told his colleagues it's drawing on his own religious faith the know it cause was necessary to ensure that religious schools are independent from government so i just don't and there's a committee report on no one's going to tell in the religious schools to participate in a program and or accept funds from the program correct that is certainly true but a religious school that doesn't want to be part of a neutral program doesn't have to be you know that's true but i mean there's still a concern that ultimately the inevitable fact of these programs is that the government would exercise its leverage over schools and look this is what people were saying at the hearing and i think that may be a little paternalistic but i think the state is allowed to have a structural provision being arguably paternalistic in its own state constitution there's no bigotry whatsoever in evidence from the actual convention which this is an act that i just don't understand how montana could have done any better than it did to wipe out its entire state constitution start all over again have committee hearings the other side's argument is the way you can do better is to say if we're going to give benefits to private schools which you don't have to do to just as priors a question you do not have to give benefits to private schools or funds or tax credits but if you do don't tell someone they can't participate because they're jewish or protestant or catholic i guess the concern of the was that if you have money going to religious schools that's going to lead to entanglement problems and the way to solve that problem is to have a structural provision saying we're not going to do it and that's not prohibiting anyone from exercising their religion it's simply separating the church from the state without again preventing an one can point to any of these schools if they don't want to and it's true that there's a constraint in the federal constitution that says that you can't coerce people you can't tell people we're going to penalize you for being religious but if a state has two principles and wants to stick to the same time  so i'll just answer briefly runner so petitioners are claiming they personally are the victims of status discrimination which is the arguing that wasn't made in that case so we think that they're allowed to make that argument it's just incorrect on its merits but of course this argument is made an amicus brief and as you say we're not able to state can't discriminate on the basis of religion the decision is crystal clear when you read it that that is what they are doing in this case they focus on the religious affiliation or religious nature of the schools they are not talking about what the schools do they are talking about what the schools are sakit somen has already answered the question about who this program is a it's not eating the schools it is aiding the parents you have a choice to make about the parents here you can either view them as mere in consequential conduit through which public funds flow to the religious schools they choose or you can regard them as you did in zelman as free and independent decision makers who are being given the power to choose a religious education or a secular education in private schools we are not arguing that the state couldn't trust fund public schools we are saying that when the legislature when the state makes the decision to empower parents to x or their right to choose and direct their children's education that the state cannot distinguish between parents who want a religious education for their children and parents who want a secular private education for their parents we only in that area because the state legislature has made like montana did the decision to open it up beyond the schools we don't question that the public schools must be secular this court recognized that in shemp and as a result the public schools now must be secular but can choose to give money or not if they choose they have to do it this way but the court system is out of it because it can't force the legislatures to act constitutionally under their own constitution you mean that's basically what you're saying so that you may answer briefly and not fund we're saying the legislature a to or then what the court should have done here they should have answered the federal question they should have recognized that trinity lutheran is applicable they should have recognized they were applying a lock exactly the way missouri tried to thank you counsel the case is submitted