Carson v. Makin

Oral argument transcript · No. 20-1088 · October Term 2021 · argued December 8, 2021 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• Michael Bindas, Seattle, Washington, for the petitioner
• Christopher C. Taub, State Attorney General's office, for the respondent
• Malcolm L. Stewart, Deputy Solicitor General, amicus curiae supporting the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We will hear argument first this morning in Case 20-1088, Carson versus Makin. Mr. Bindas. ORAL ARGUMENT OF MICHAEL BINDAS ON BEHALF OF THE PETITIONERS

Michael Bindas: Mr. Chief Justice, and may it please the Court: Maine's sectarian exclusion discriminates based on religion. Like all discrimination based on religion, it should be subjected to strict scrutiny and held unconstitutional, unless Maine can show that it is necessary to achieve a compelling government interest. Maine cannot make such a showing, and the First Circuit never held that it could. Instead, the First Circuit held that there are two kinds of religious discrimination, the bad kind and the good kind. The First Circuit recognized that Maine cannot discriminate against students or schools because they are religious, but it held Official 1 the state is perfectly free to discriminate against students or schools because they do religious things, such as teach or receive instruction in religion. The First Circuit was wrong. Religious discrimination is religious discrimination, and unless it can survive strict scrutiny, it is unconstitutional. The First Circuit's refusal to apply strict scrutiny based on a supposed status use distinction was baseless. There's no basis for a use-based departure from strict scrutiny in the text of the Free Exercise Clause. There's no basis for it in this Court's free exercise precedent. And there is no basis for it in common sense. Religious schools, after all, teach religion, just as a soccer team plays soccer or a book club reads books. Yes, it is part of what they do. It is also part of who they are. Of course, religious schools also teach secular subjects and satisfy every secular requirement to participate in the tuition assistance program. It is only because of religion that they are excluded. Official 1 You can call that discrimination based on religious use. You can call it discrimination based on religious status. Call it what you will. Either way, it is discrimination based on religion, and either way, it is unconstitutional. I welcome the Court's questions.

Justice Thomas: Counsel, the -- neither of the two schools that you talk about, discuss, has indicated that it -- it will accept students who receive state funding or subsidies. So would you discuss just briefly then your -- whether or not you have standing?

Michael Bindas: Absolutely, Your Honor. The First Circuit correctly held that whether or not these two particular schools ultimately will or will not participate was beside the point because the constitutional injury here is the denial of the opportunity to even seek out religious education under this program. That constitutional injury is directly attributable to the sectarian exclusion, and it is unquestionable that holding the sectarian exclusion unconstitutional would redress that injury. Official 1 And this Court's decisions in cases such as Northeastern Florida Chapter of Associated General Contractors, Heckler versus Mathews make clear that when a plaintiff is challenging the -- a barrier, a discriminatory barrier to a public benefit, the plaintiff need not show, indeed, need not even allege, that they would actually obtain the benefit but for the discriminatory provision. In fact, in Heckler versus Mathews, it was a foregone conclusion that if the plaintiffs -- plaintiff was successful in challenging the discriminatory provision in the public benefit program, he would not get the benefit because there was a unique severability provision in the program that said if this provision is invalidated the benefit goes away. It doesn't get extended to the excluded class. It goes away. This Court held that, nevertheless, even though it was a foregone conclusion the plaintiff would not get the benefit, he nevertheless had standing --

Justice Kagan: So, Mr. --

Michael Bindas: -- to challenge. Official

Justice Kagan: -- Bindas, does that mean that if there were only two schools in the state that met the Petitioners' religious requirements, so only two schools that the Petitioners would go to, would use this money for, and both of -- and we knew that both of those schools were not going to accept the money or were very unlikely to accept the money, still we would say that there was standing?

Michael Bindas: Your Honor, in Heckler, the Court held that even the stigmatic injury of being subjected to the discriminatory treatment in that case was sufficient for standing purposes, even though it was a foregone conclusion that the plaintiff would not get the benefit if successful in his challenge in that case.

Justice Kagan: So the answer --

Michael Bindas: Now --

Justice Kagan: -- to my question is yes, that even if they're -- even if all the schools that meet the Petitioners' religious requirements make clear that they're not going to accept this money, we still have a case before us? Official

Michael Bindas: Your Honor, what I would want to know in that situation is whether the plain -- the plaintiffs had alleged that they will not go to any other school but these two schools, whether -- I mean, you also have to remember that this sectarian exclusion has been on the books for four decades. So, to the extent there's a dearth of religious schools that are acceptable to the plaintiff in that situation, that's probably attributable to the fact that Maine has been discriminating against schools for four decades. There's a lot I would want to know there, but --

Justice Barrett: Well, would the Nelsons go to any place besides Temple Academy?

Michael Bindas: Well, Your Honor, the -- the Nelsons alleged and I -- more importantly, Maine stipulated that -- and this is at the Joint Appendix page 78 -- that what they want is an education that aligns with their sincerely held religious beliefs.

Justice Barrett: But I thought they identified Temple Academy as the place that they wanted to send their child.

Michael Bindas: They did. Well, and they Official 1 had been sending their child to Temple Academy, so -- when it came to high school, they could no longer afford the tuition. They were statutorily entitled to the tuition benefit, but they could not use the benefit at that particular --

Justice Barrett: Okay.

Michael Bindas: -- school.

Justice Barrett: But you're saying that they would be open to sending their child to someplace other than Temple Academy if Temple Academy didn't accept the funds?

Michael Bindas: If -- if Temple Academy ultimately, at the end of the day, did not accept the funds, yes, I believe what they want is an education that aligns with their sincerely held religious beliefs.

Justice Kagan: Do you know whether there are other schools that align with their sincerely held religious beliefs in that way?

Michael Bindas: Your Honor, I -- I suspect there are. Can I point you to a particular school in the record that they would absolutely attend otherwise? I can't. But, as the First Circuit correctly held, it's the Official 1 denial of the opportunity to even seek out such a school that is the constitutional injury here. And I should also point out that to the extent Maine is claiming that we lack standing to challenge ongoing religious discrimination based on the fact that some schools at some point down the road might mull -- might ultimately decide not to participate here, I -- I -- I -- I think the -- the problem here is that we don't know that, right? Maine's argument is essentially that these schools might be excluded at step 2, 3, 4. The problem is there is an absolute barrier at step 1. Maine stipulated -- this is at page -- page 70 -- I'm sorry -- yes, page 79 of the Joint Appendix -- that it would be, in Maine's words, futile for our clients to even ask their school districts to pay tuition funds to these schools because they are sectarian. Maine stipulated at pages 90 and 99 of the Joint Appendix that it would be, again, futile for the schools to ask the state whether they could accept tuitioning funds. Why? Because they are sectarian. There is an absolute barrier at step 1. Official 1 Maine wants to say, well, we might do this or that at step 2, 3, or 4 that might bear on whether these schools ultimately decide to participate or not. But the problem is we can't even get that answer because they're excluded at step 1.

Justice Barrett: So this --

Justice Breyer: Sorry, but on -- on this particular point, I take it the reason is something like that they're -- they're religious beliefs in the school's belief. They don't want to have gay students, they can't. They can't have gay teachers. They have to teach that the man is the boss of the women and a bunch of other things like that. Am I right about that?

Michael Bindas: Your Honor, that -- that these schools hold traditional --

Justice Breyer: No. Did I state it roughly right?

Michael Bindas: Your Honor, I -- I -- I don't know that that's --

Justice Breyer: Well, then tell me whether -- I mean, what -- what is -- I've read this. I mean, is -- is it right or not right? Official 1 Because I -- I have a question, and it depends, but this is not my question. I'm -- I -- I need to know this as background.

Michael Bindas: Well, Your Honor --

Justice Breyer: There are -- there are beliefs that no gay students, no gay teachers, the man is superior to the woman, and a few other things like that. Is that right?

Michael Bindas: Your Honor, I don't know that it's correct to say no gay students. No, I don't believe that's the case. Do --

Justice Breyer: No gay teachers?

Michael Bindas: Would they -- do the schools consider that in hiring decisions? Yes. But the Maine Human Rights Act absolutely protects the right to do so. There is a provision --

Justice Breyer: So what happens to the Temple school? If that's their religious belief, they don't want sincerely to have a gay teacher and the Human Rights Act says, yes, you have to, what happens?

Michael Bindas: The Maine Human Rights Act says the opposite, Your Honor. There is an absolute religious -- Official

Justice Breyer: All right, it says you cannot discriminate on the basis of sexual orientation. Is that what it says?

Michael Bindas: In hiring, there is an absolute protection, Your Honor, for -- that allows a --

Justice Breyer: All right. And suppose the religious belief is the opposite.

Michael Bindas: Your Honor --

Justice Breyer: Oh, I see. The Maine rights act says the religion can do this. Well, what does it say? I'm sorry.

Michael Bindas: There's a provision that says a religious employer can require that its employees adhere to the religion's tenets -- religion's tenets. There is an absolute exemption --

Justice Breyer: I see. I see.

Michael Bindas: -- that Maine neglects to mention in its briefing.

Justice Breyer: And so what's the problem with the school accepting the money?

Michael Bindas: Your Honor, insofar as I see it, there is no problem. Maine never --

Justice Breyer: So maybe there isn't Official 1 a standing problem.

Justice Kagan: And -- and --

Justice Breyer: But if -- what's worrying me underlying all this is that there are 65 religions or more in this country and they believe a lot of different things. And what's worrying me is -- is that if the school -- if the state must give money to the schools, they're going to get into all kinds of religious disputes. One state says, no, you -- in this kind of a situation, you've got to hire the gay teacher. The other says yes, you -- yes. The other says no. The other says one thing. The other says the other. And religious beliefs, of course, are -- are very sincere and held very strongly. And so there was a reason why this Court's cases have said we do not want to get into a situation where the state is going to pay for the teaching of religion by religious -- you know, practicing religious organizations, and -- and that seems to me to stick its head up in a lot of different aspects of this case. That's what's underlying my problem.

Michael Bindas: Sure, Your Honor. And I Official 1 think the Court has already addressed that in -- in Zelman. This program does not fund schools. And if religious schools were allowed to participate, it does not fund schools. It funds families. And not a penny can go to any school but for the genuine private choice of individuals. As this Court held in Zelman, as this Court held in Locke, that private independent choice severs the link between government funds and religious instruction. If there is --

Chief Justice Roberts: Well -- well, let's consider whether that's not the case. Let's say a state has -- thinks the schools around the state are -- you know, they need better physical facilities. They have a program that they're going to give money to schools so long as they spend it on building. And they're going to give it to private schools too because building is good for education there. And they're going to give it to religious schools. But, with religious schools, they say, look, you can't use this money to build a chapel, but you can use it for anything else. Official 1 Is that discrimination against the religious schools?

Michael Bindas: Is it --

Chief Justice Roberts: I mean, it is. But is that okay or not?

Michael Bindas: I suspect the government would very well have a compelling interest in that case, Your Honor, because we're talking about direct institutional aid. And when you're dealing with direct institutional aid, the government is quite literally funding the thing. But, here, government is simply doing this: It's providing a benefit, a financial benefit to families, and it's saying use it where you will --

Justice Sotomayor: And --

Michael Bindas: -- public school, private.

Justice Sotomayor: -- can I ask you, what is the discrimination? I think all parents in Maine are given the chance to send their children to free public secular schools. Correct?

Michael Bindas: To free pub --

Justice Sotomayor: All parents can do Official 1 that?

Michael Bindas: To free public secular schools or to the private school of their choice, Your Honor, yes.

Justice Sotomayor: Well, wait a minute. Let's take a step at a time. The ultimate choice is send -- you get a free public education. That's what they're promised, correct?

Michael Bindas: No, Your Honor. So the benefit is defined by the statute.

Justice Sotomayor: No, no, no. The benefit is, if I'm a parent and there's a public school, the choice is send your child to that public school, you get no benefit, right?

Michael Bindas: If you live in a district that has a public school, you do not, yes.

Justice Sotomayor: All right. So, in that case, are you arguing that the state has to finance the parent?

Michael Bindas: Oh, not at all, Your Honor, no.

Justice Sotomayor: No, because they're offering a free public education, correct? Official

Michael Bindas: Not for that reason, Your Honor. There is no constitutional requirement. As this Court held in Espinoza --

Justice Sotomayor: Exactly. All right.

Michael Bindas: -- a state needn't --

Justice Sotomayor: In that situation, the parent pays for the religious training of their child.

Michael Bindas: If they desire a religious school as opposed to going to the public school, yes.

Justice Sotomayor: All right. And the pub -- the district could contract with a school to provide the public education, correct?

Michael Bindas: If the district lacks a public school, then it can contract with a school to send its resident students, yes.

Justice Sotomayor: Do you take the position that the school has to -- that the district has to permit or contract with a religious school to provide --

Michael Bindas: No, Your Honor. At Footnote 9 in our opening brief, we say the opposite, that in that situation where the Official 1 government is contracting with a school to educate its resident students, that school would have to provide secular instruction.

Justice Sotomayor: And the parents have to pay then for the religious training of their children?

Michael Bindas: If they don't want to go to the school with which the government has contracted and they desire a religious education, yes.

Justice Sotomayor: So it's only because the school has this -- the district has decided to give you money to find a secular education that you say there's discrimination?

Michael Bindas: No, Your Honor. Again, I would return to the statute defining the benefit. I think Maine tries to redefine the benefit as a public education. The benefit is defined in the statute itself, and the benefit is tuition to attend the public or the approved private school of the parent's choice at which the child is accepted. That is the benefit.

Justice Sotomayor: No, no, no, because you leave out what they say is you can Official 1 pick any school you want for a secular education.

Michael Bindas: Well --

Justice Sotomayor: They don't say -- because they permit religious schools that -- that are -- that don't teach or describe themselves as non-sectarian to receive benefits. These parents are put to the same choice that every other parent in Maine is put to: either get a free public secular education or pay for your religious training. They're being treated as everybody else is.

Michael Bindas: They are not, Your Honor. In some school districts in Maine, government provides a financial benefit that can be used at the public or private school of the parent's choice. That is --

Justice Sotomayor: They're getting more than other parents.

Michael Bindas: Just as --

Justice Sotomayor: Most other parents have only one choice: send them to the public school if it exists, send them to the contracted school that exists, or don't.

Michael Bindas: And that's always true Official 1 with a school choice program, Your Honor. That was true in Zelman. That program was specific to Cleveland schools --

Justice Kagan: I mean, one way to make Justice Sotomayor's point, I think, is -- is to ask whether this is different from a typical school choice program. You know, this is not a state or a locality basically saying: We just love choice. We think everybody should get as many choices as they want. This is really a default program for a very small number of students living in isolated areas where the state has decided it cannot -- it does not have the resources to provide public schools. And the state would wish to say public schools for everybody. You know, you go to Portland, Maine, it's just public schools for everybody. The state would wish to do that. It can't do that in communities in northern Maine, so it instead has come up with this extremely cabined program. And I think, you know, one question here is whether we should view that in the same Official 1 way as a kind of Zelman "we love choice" sort of program.

Michael Bindas: A couple points there, Your Honor. Zelman was a program for children in a school district where the public schools were failing. It was because of a lack of opportunity in the public school system that the state -- that the state provided the benefit that --

Justice Kagan: Yes, but it was a districtwide program, these -- this is not working for us, we want to use an entirely different system. That's not Maine's issue here.

Michael Bindas: Oh, well, Your Honor, I -- I -- I think it is. And we -- we should remember that for more than a century, Maine allowed religious schools to participate in this program, which belies the whole notion that this is a substitute for a public education. For a century, religious schools could participate. And for a century, that was fine. And there were secular options and there were private options. There were public options. There were private options. There were options Official 1 in Maine. There were options outside of Maine. In 1980, the state does a reverse course based on an erroneous interpretation of the Establishment Clause that says, you know what, no longer can you attend -- yes, we'll continue to send you to Miss Porter's or Avon Old Farms, but don't you dare think about going to a Jewish day school or an Islamic school or your local Catholic parish's school. For a century, that had been fine. This was not about providing a substitute for a public education. This was about a turn in 1980 based on an erroneous interpretation of the Establishment Clause that for some reason, if it wasn't clear after Mueller, if it wasn't clear after Witters, if it wasn't clear after Zobrest, if it wasn't clear after Zelman that that was wrong, it was certainly clear and certainly -- well, it certainly was clear after Zelman. Yet, the state continues to stand by this decision --

Justice Kagan: Can I take you back to Justice Breyer's point and also the Chief Justice's hypothetical, is you said, well, there's this, you know, strange use-status Official 1 decision and we all know that doing religious things is just as protected as being religious. And, of course, nobody would argue with that. I mean, you couldn't put somebody in jail for being religious, and you couldn't put somebody in jail for doing religious things. So, you know, in -- in that -- no -- nobody argues that. The status-use concept is -- is really a concept that applies in subsidy cases, and it's a -- and -- and -- and what is -- it -- it has been intended to say is that the state generally doesn't have to subsidize exercise of a right. You know, we can't put you in jail for saying something. We also can't deprive you of an unrelated benefit for saying something. We can't say you don't get food stamps because we don't like your speech. But that doesn't mean we have to pay for your speech. And we do that all over the place in constitutional law. We do it in the Free Speech Clause. We do it in other areas as well. And so the question here that the status-use distinction raises is, why is Official 1 religion different? Why does the state have to -- not like -- some states want to, but this state doesn't want to. Why does the state have to exercise -- have to subsidize the exercise of a right?

Michael Bindas: Your Honor, this is not subsidizing the -- the -- the exercise of a right. It is conditioning the availability of an otherwise available public benefit on the surrender of a constitutional right. As this Court held in Thomas, the government cannot compel a citizen to choose between exercise of a right protected by the First Amendment and participation in an otherwise available public program. And there's no question that these --

Justice Kagan: The state can define the nature of the program. So just like the state defines the nature of the program in a case like Rust v. Sullivan and in countless of other of our cases, so here the state is defining the nature of the program and saying, for various of the reasons that Justice Breyer gave, that we just -- we don't want to define the program so broadly as to raise all these Official 1 questions of religious favoritism, religious division, and so forth.

Michael Bindas: Your Honor, in a program like Rust or Regan for that matter, which the United States briefs extensively, you're dealing with government speech. First of all, this is not a government speech program, and no one can credibly claim it is. To the extent it is government speech, however, as this Court made clear in Pleasant Grove, the Establishment -- government speech must comport with the Establishment Clause, which requires neutrality toward religion. Moreover, in Rust, the doctors were not forced to choose between receipt of the benefit and the exercise of their right to engage in abortion counseling. They just couldn't use the benefit to do it. Here, you are forced to make a choice. You can get your statutorily entitled benefit to attend the public or private school of your choice, or you can exercise your free exercise --

Justice Gorsuch: Well, counsel --

Michael Bindas: -- your free exercise Official 1 right. You cannot get both. It's one or the other.

Justice Gorsuch: Counsel, on that, I believe the government's response -- and I think this is what Justice Kagan's getting at -- is in -- in -- in -- in Rust, you know, the question is whether you're put to a choice. And -- and, here, the government says there is no choice that you're put to because individuals can still educate their -- their children in religion by sending them to -- I think it's after-school programs or Saturday or Sunday programs. What are your thoughts about that?

Michael Bindas: Well -- well, Your Honor, the Court in Espinoza held that parents have a right to direct the religious upbringing of their children and that many parents exercise that right by sending their children to religious schools, which is protected by the Constitution. So there's no question that parents have a constitutional right to send their children to a religious secondary school. Now, in making that argument that somehow this is all okay, this discrimination is okay because you can go to a weekly Bible study, Official 1 number one, that's insulting to parents, who are in the position of determining what's an appropriate education, religious education, for the child. But it also ignores the excluded activity. In Rust, the excluded activity was abortion counseling. You could still do that. In Regan, it was substantial lobbying activity. You could still do that simply by adopt -- adopting the 501(c)(3), (c)(4) designation. In Locke, the excluded activity was a degree in devotional theology, which the Court noted Joshua Davey could still do and still get the promised scholarship. Here, the excluded activity is a religious secondary education. You cannot get that if you get the benefit.

Justice Gorsuch: Does this affect different religions differently, the government's argument? I mean, some religions might find a -- a -- a Sunday school perfectly appropriate; others, perhaps, may not.

Michael Bindas: I -- I -- I think it does affect different religions generally and -- differently, Your Honor. And I think this also Official 1 goes to the Establishment Clause problem here. The fact of the matter is some schools that are religious in what the government would call status, perhaps that do some things that look religious, are allowed to participate. But there is a regulator in Augusta, Maine, who looks into the curriculum and the activities of -- of the school and sits in judgment on whether that school is sufficiently irreligious and therefore a permissible choice for a parent or too religious and thus sectarian and excluded as a permissible choice for the parent. Put aside the Free Exercise Clause problem. That is a substantial Establishment Clause problem, as Judge McConnell makes very clear in his amicus brief.

Justice Breyer: Well, the thing is under -- I don't know if you can think about it at this level or advance my thinking on it, which is what we've seen, of course, is that the religious clauses are there to prevent the religious wars. You teach your religion. I teach mine. Okay? And to our children. Now, when you get to education, the route you're taking is not unknown. France Official 1 takes that route. And you could say, well, the -- the state will pay all the religious education, as well as all the secular, and treat everybody alike. We've never taken that really. The opposite is none. Don't pay the priest's salary and don't pay the teaching of devotion and some -- you know, the teaching of actually devotional activity. And then there's the middle, where you say give the money to the parents and let them choose. Okay. So what this is, is it's closer to the second -- I mean it's closer to the first, the state's going to pay for it. And the reason I think we've stayed out of that is because we have too many religions, 60, 70, and they're going to get into too many arguments with each other about everything under the sun, you know, and you start getting into arguments about whether the -- it should be like this way in the window or the other way in the window or this is the kind of thing to teach or that. It's really awful. I mean, I'm not saying the arguments are bad. I understand them. But you get the state in as the arbitrator or the courts, and you're right in Official 1 the middle of religious activity. So, as I look at these cases in bulk, not the exact words, I see a big push, with our 60 or 70 religions, towards keeping the state out of it. And so that is a -- a theme that probably influences the way I -- I -- I approach these problems. I'm not saying I'm right. I'm asking you because I want to know what you have to -- to help me or -- yeah, what do you want to say?

Michael Bindas: Well, Your Honor, going back to your three approaches, I -- I -- I respectfully disagree that this mirrors the first approach. This is the third approach, provide the money to the family and let them decide. And as this Court held in Zelman, as this Court held in Locke, that private choice severs the link between government funds and religious instruction. So, to the extent there is any advancement of a religious mission, that's attributable to the choice of a parent. It can in no way be attributed to the government. And, Your Honor --

Justice Breyer: The problem is the government's paying for it, right, directly -- Official

Michael Bindas: But it's paying --

Justice Breyer: -- and -- and they say -- one -- one -- one church says, my God, you certainly cannot pay for a classroom that's of this size because we're using it to worship and it has to be bigger than that. And the others say that's just what you shouldn't do. Worship is private and you should have a smaller space for it. And -- and then they're going to have to articulate, you see, and -- and, ultimately -- well, the -- of course, the parents can choose which of those two, it's paid for by the state, and they start suing each other. It's government money here going.

Michael Bindas: Your Honor, as this Court held in Zelman, any constitutional test that would turn on supposed avoidance of -- well, let me rephrase that. When you're dealing with a program of individual choice, the possibility, what the Court called the specter of divisiveness, religious strife, does not bear on the constitutional analysis because of the fact that it is an individual. No one would suggest that a Social Official 1 Security beneficiary couldn't tithe to her church because that would somehow be funneling government funds to religion. Her private choice as to where to use those funds is her private choice.

Justice Kagan: Zelman --

Justice Breyer: Which you cannot refer --

Justice Kagan: -- Mr. --

Justice Breyer: -- as a number. I mean, you cannot insist that the Social Security Administration refer to you by a name rather than a number? Forget it. Forget it. Go on to Justice Kagan.

Justice Kagan: I mean, Zelman was a -- was a case in which the question was could a locality implement such a program. And the question here is different, is does the locality have to implement such a program. And what -- what we have often talked about in our First Amendment religion cases is this idea of play in the joints, that not everybody has to follow the same model and that there is some amount of funding which is neither prohibited by the First Amendment nor -- nor Official 1 commanded by the First Amendment. And -- and, essentially, what Maine is saying here is, like, all well and good if a locality or if a state wants to do this, but -- but we weigh the interests differently, and shouldn't we be allowed to weigh the interests differently?

Michael Bindas: Your Honor, the -- the quintessential play in the joints is whether or not to have a school choice program. We know the Establishment Clause allows it. Mr. Chief Justice, may I finish?

Chief Justice Roberts: You can finish your thought.

Michael Bindas: Okay. We know that the Establishment Clause allows it. Zelman tells us. We also know that the Free Exercise Clause doesn't require it. In Espinoza, the Court held a state need not subsidize private education. Whether to have such a program is the quintessential play in the joints.

Justice Kagan: But the point here, I suppose, is this, is that some states would, you know, have such programs and love them. And Official 1 another state says, for the reasons that Justice Breyer gave, you know, we think that this would be incredibly divisive in our community, and you can think of a wide variety of reasons why that would be. It would lead to too great entanglement. It's not good for the religion itself. Or other people in our community won't understand why we're funding this program. I mean, these schools are overtly discriminatory. They're proudly discriminatory. Other people won't understand why in the world their taxpayer dollars are going to discriminatory schools. For any of a number of reasons, a state can say we don't want to play in this game. And the question is, isn't this play-in-the-joints idea, wasn't it specifically understood to allow different kinds of solutions in different sorts of areas?

Michael Bindas: Mr. Chief Justice, may I -- my -- my time is well --

Chief Justice Roberts: You can answer the question.

Michael Bindas: Thank you, Your Honor. In Espinoza, this Court specifically Official 1 rejected any test that would turn on weighing the benefit and the exclusion against some general state interest in avoiding religious conflict. I -- I mean, I -- I -- I think the Court has already rejected any such test when you're dealing with a program, at least one that operates and turns exclusively on the private choice of parents. It might be a different situation if we were talking institutional aid, but not in a program like this, Your Honor.

Chief Justice Roberts: Thank you. Just one additional question, counsel, or request. Could you articulate for me your -- your -- your best distinction of -- of Locke before you get to the argument that you think it should be overruled?

Michael Bindas: Yes, Your Honor, absolutely. So, as Espinoza and Trinity Lutheran held, Locke really does need to be cabined to its facts, and so let's look at those facts. Students could attend religious schools, including what the Court called pervasively religious schools. They could take Official 1 devotional theology classes, including compulsory classes in such things as spirituality, evangelism, Bible, and religious doctrine. The one thing and the only thing they could not do was pursue a major in a degree for entry into the ministry for -- for basically the instruction of future clergy. Even then, however, a student was not required to choose between receipt of the benefit and pursuing a devotional theology major. As the Court noted in Footnote 4, they could do both. Now let's look at the facts of this case. Miles apart from Locke. This is not a situation where, as Locke put it, government's going a long way toward accommodating religion. It is a wholesale exclusion of religion. If a school teaches a single class in religion or it doesn't even teach any religion, it just teaches secular subjects, if it happens to teach those secular subjects through what a regulator in Augusta determines to be the lens of faith, that school is out. So the exclusion is completely different. Moreover, Locke, Joshua Davey was not Official 1 forced to choose. Here, parents must choose.

Chief Justice Roberts: So what if the state has funding vocational education? They've got a school for kids who want to learn the trades. They've got one for kids who want to learn the -- the fishing industry, one for kids who want to focus on tourism, and there's -- and a seminary that prepares individuals to be priests or pastors. Can they decide not to fund the seminary?

Michael Bindas: Your Honor, I think if -- so long as Locke is good -- remains good law, yes. And, moreover, in the program Your Honor described, it sounded like it was a direct institutional aid type program. And I think even more so than in Locke, the Court -- the -- the state could make that choice.

Chief Justice Roberts: Thank you, counsel. Justice Thomas?

Justice Thomas: Nothing for me, Chief.

Chief Justice Roberts: Justice Breyer, anything further? Official 1 Justice Alito? Justice Sotomayor?

Justice Sotomayor: Yes. I have -- I have one follow-up. I have a great deal of difficulty here. I think, following up Justice Gorsuch's point and your own, that you admit that the reason why this school is important to these parents is because they don't teach just secular subjects, that they teach all subjects through the lens of their religion. Am I correct?

Michael Bindas: They -- they -- religion is a part of -- of their curriculum, yes, Your Honor.

Justice Sotomayor: I thought, if I understood the materials from the schools that were here, that the very point is that they teach all subjects through the lens of the religion.

Michael Bindas: Well --

Justice Sotomayor: That -- and I repeat -- even their science courses are limited in their reach because of their belief in certain -- or disbelief in certain -- in certain theories of science. Official

Michael Bindas: I don't know that there's anything in the record on that, Your Honor. And to the extent the state can -- desires to say, hey, if you're going to participate in this program or if you even want to be an approved private school to operate at all in the -- in the State of Maine, you have to teach certain curriculum and you have to teach the theory of evolution, I -- you know, that might well --

Justice Sotomayor: That's okay?

Michael Bindas: That -- but that's --

Justice Sotomayor: Is it okay to say to -- to a school you have to take every student and not discriminate on the basis of sex, color, religion, that they don't practice your religion, the student -- I understand that there's an exemption in Maine for who they hire to teach, but if this program is supposed to -- which I think it is -- to give students a choice, is this program permitted to say, with respect to the students, if they meet your academic requirements, you can't discriminate?

Michael Bindas: Well, Your Honor, that -- that's not this case. But could the state do that? I think you're looking analytically at a Official 1 totally different situation there because, at least on its face, that's a religiously neutral requirement. Now could there be some evidence of a discriminatory object in the -- in the adoption of that provision? Perhaps. But at least it's facially neutral, which means, if it's neutral, you're not even getting strict scrutiny at that point. Moreover, I would say, Your Honor, it's important to remember that schools that welcome students of all stripes, that do not consider sexual orientation or gender identity in hiring, in admissions, or for any other basis, are just as excluded from this program if they teach that message of inclusiveness and diversity through the lens of faith, and there's record evidence of that in the Kent School.

Chief Justice Roberts: Justice Kagan, anything? Justice Gorsuch?

Justice Gorsuch: Yeah, I -- I just want to follow up on that. I just want to be clear in my mind that we're not -- we're not being called upon today to interpret Maine's Official 1 anti-discrimination laws, and we don't need to do that to decide this case?

Michael Bindas: Not at all, Your Honor. Maine has never said these schools will be excluded.

Justice Gorsuch: And -- and -- and the Kent School example, that -- that was a -- a -- a religious school that actually applied, as I -- as I remember it -- just correct me if I'm wrong -- to participate but was rejected even though it -- it -- it said it was not a sectarian school and said that it was willing to abide by Maine's anti-discrimination laws?

Michael Bindas: In the record, I don't know whether it specifically talks about the Maine Human Rights Act at that point because Maine excluded it solely because it was religious. This goes back to the step 1 --

Justice Gorsuch: Yeah.

Michael Bindas: -- absolute barrier. But, if you get on to the Kent School's website and look at its policies regarding employment and -- and admissions, it's plain as day, the school does not discriminate on any of the grounds we're talking about. Official

Justice Gorsuch: So religious schools are forbidden regardless whether or not they're going to participate?

Michael Bindas: Solely because they are religious.

Justice Kavanaugh: Two questions about how far your argument goes. With respect to Locke, to follow up on the Chief Justice's question, you're saying that that is limited or could be limited to cases involving the training of clergy? Is that an accurate description?

Michael Bindas: Well, Your Honor, I think the Court itself limited it in that -- in that way in Locke itself. The Court went so far as to say the only state interest, the Court's words, that we're addressing is the state's interest in not funding the training of clergy. So I think, on its own terms, it's limited to that.

Justice Kavanaugh: Okay. And then, second, just to clarify, you're not arguing, but correct me if I'm wrong, that the mere funding of public schools would entitle the parents to funding for religious schools? You're saying, but correct me if I'm wrong, that once the state Official 1 starts funding private schools, it can't exclude religious private schools and fund secular private schools, is that correct?

Michael Bindas: That is correct, Your Honor. We -- we are not arguing that there is a constitutional right to a publicly funded religious education, nor could we. Espinoza said point blank a state need not subsidize private education.

Justice Kavanaugh: Okay. Thank you.

Justice Barrett: One follow-up on the same lines as Justice Kavanaugh. I -- I gather, in drawing the distinction that Zelman drew between choice and direct funding, that you would concede that if Maine retooled its program so that payments went directly to private schools, like, say, to Miss Porter's, you know, we will pay you X number of dollars to reserve 40 seats in each class for schools -- for students from districts that lack a public school, you're conceding, I take it, that in the case of that kind of direct subsidy, there would not be a problem with Maine not subsidizing a private religious school as well? Official

Michael Bindas: Well, Your Honor, in that situation, what I'd want to know is -- is whether the -- so we're talking about basically a per capita program where payment is to the institution but is determined on a per student basis of how many students the -- the district is sending? Is that --

Justice Barrett: Well, I'm just trying to press on how important to your argument this severed link is where the money is going to the parents and then going to the school, as opposed to we'll just pay you a flat rate. Whether 40 students enroll or not --

Michael Bindas: Oh.

Justice Barrett: -- we want 40 -- 40 seats for students that lack a public school in their district.

Michael Bindas: If -- if -- if we're bringing choice out of the equation and we're talking about a direct institutional aid type program, then we're talking about a much, much different case, Your Honor.

Justice Barrett: And -- and you -- when you say much, much different case, are you talking about then a case where there would not Official 1 be a free exercise claim that could succeed?

Michael Bindas: I think, if the government's paying a flat rate to schools that doesn't turn on whether a student is choosing to attend that school, I -- I -- you know, again, I would want to know the particulars, but I think that that would be permissible in that situation for the state to say we're not going to pay a flat rate, we're not going to contract with a school that's providing religious instruction. But there are a lot of variables there, Your Honor. If the --

Justice Barrett: I understand.

Michael Bindas: -- if the payment is based on defraying the cost of tuition for the number of kids that -- but it's --

Justice Barrett: No, I understand. I'm just -- I'm just clarifying that you're not defending the notion of that kind of direct subsidy, as opposed to saying that this program functions like choice, like a -- like a school choice program, particularly given that kids can go as far as California and to elite boarding schools all over the country with the money?

Michael Bindas: Not a penny flows to any Official 1 school under this program but for the private and independent choice of families.

Justice Barrett: Thank you.

Chief Justice Roberts: Thank you, counsel.

Michael Bindas: Thank you, Your Honor.

Chief Justice Roberts: Mr. Taub. ORAL ARGUMENT OF CHRISTOPHER C. TAUB ON BEHALF OF THE RESPONDENT

Christopher C. Taub: Mr. Chief Justice, and may it please the Court: With respect to justiciability, this case is now about one family who wants to send one child to one specific religious school. The record clearly demonstrates, though, that this one school has zero interest in taking Maine's money. Under well-established principles, the Petitioners do not have standing because, even if they were to prevail, they would receive no redress for their alleged injury. As to the merits, Maine law entitles every child to a free public education. Maine's highest court has recognized that the tuition program at issue here is intended solely to ensure that those few children who live in Official 1 districts that have not made appropriate schooling arrangements are still able to receive a free public education. That is the benefit at issue here, a free public education. That private schools are sometimes enlisted to deliver the benefit is of no constitutional significance. States frequently outsource the delivery of public benefit programs, and that does not change the public nature of the program. It should be no different when it comes to education. The reason that schools that promote a particular faith are not eligible to participate is simple. Maine has determined that, as a matter of public policy, public education should be religiously neutral. This is entirely consistent with this Court's holdings that public schools must not inculcate religion and should instead promote tolerance of divergent religious views. The Petitioners want an entirely different benefit, instruction designed to instill religious beliefs at taxpayer expense. They are not being discriminated against. They simply are not being offered a benefit that no Official 1 family in Maine is entitled to. Coming at this from a different perspective, this Court has made clear that the government is entitled to define the scope of a financial benefit in order to advance its own value judgments, even when doing so might disadvantage activity protected by the First Amendment. If the federal government can provide funding to family planning services on the condition that it not be used to discuss abortion, a state should be allowed to condition paying a child's tuition on the condition that the school not promote religious beliefs.

Justice Thomas: Counsel, in Maine, can a parent decide that they simply do not want to send their child to any school at all?

Christopher C. Taub: They -- they could home-school the child --

Justice Thomas: No, I -- I mean zero education.

Christopher C. Taub: No, no, there is compulsory attendance laws which would satisfy the --

Justice Thomas: So you require them to go to school, and you -- in certain areas, Official 1 you don't have schools available?

Christopher C. Taub: That's correct.

Justice Thomas: So, if you -- you require them to go and you don't have schools available and you make provisions for them to comply with that compulsory law, then how can you say that going to a particular school is a subsidy?

Christopher C. Taub: How can we say that going to a particular school is a subsidy?

Justice Thomas: Yes. You say -- you require them to go to schools to do something that you haven't provided for, but then you make a way for them to do that, and you have now -- now -- you now say it is a benefit or a subsidy. But it is you who require them to do it. In certain places, you can provide them with a public school, and in other places, you can't. But they still have to comply with the law.

Christopher C. Taub: Yes, Your Honor. But -- but this Court has made clear that -- that states have a legitimate interest in compulsory education laws. And --

Justice Thomas: Well, I agree. I Official 1 understand that. I'm not arguing with that. But you have required them to go. It's one thing if you said, look, you -- we will pay for your -- your attendance at a particular -- at college, at the University of Maine, but we won't pay for you to go to a religious college as a substitute for that. You don't have a compulsory requirement that anyone attend college, but you do for primary and secondary school. And I just -- I just want you to explain to me how that is a -- a -- is it -- it's a subsidy if you require them to attend, but you make no provision for it.

Christopher C. Taub: Well, Your Honor, in this case, what the benefit that's being offered is a free public education, and so the Maine legislature has decided that it's critical that every student in Maine obtain, if he or she wants it, a -- a free public education. And so the state has made certain provisions. It requires school districts to make provisions to ensure that every child gets that benefit. In certain cases, though --

Justice Thomas: Well, I don't know Official 1 how it can be a benefit when you -- you've required it. I -- I'm not saying it can't be a benefit. I think it's a benefit. But you're required. It's a requirement. Anyway, I'm not going to belabor that. The -- the -- but I am interested in your -- you explaining to me what your term "rough equivalent" of a public education is. What do you mean by "rough equivalent"?

Christopher C. Taub: So, in the state's view, Your Honor, the most significant and defining feature of a public education is that it is a sectarian education that is religiously neutral.

Justice Thomas: And what do you mean by that?

Christopher C. Taub: So what -- what we would consider is an education that doesn't promote one particular set of religious beliefs at the exclusion of others, so -- so a school that -- that might teach about different religions but doesn't instruct students that they are to follow any particular religion, so it's -- it's neutral and silent when it comes to -- to what religion a child should follow.

Justice Thomas: So let's say I'm in Official 1 Bangor, Maine, or -- and I'm in a public school. Where is it written in the charter of that particular school that it be non-sectarian? It would seem to me that your interest would be on -- on academic subjects.

Christopher C. Taub: Well, I mean, Your Honor, if -- if I understand your question, this -- this Court has recognized that public schools must be secular, that they --

Justice Thomas: No, I'm just -- I think, as far as education, you wouldn't care -- if you're in a public school, religion doesn't come up. It's a non-issue.

Christopher C. Taub: Well, religion doesn't come up because it can't come up. I mean, that -- that is the very defining feature of a public school, is that -- is that it doesn't have mandatory prayer. It doesn't have mandatory worship services.

Justice Thomas: I know, but that's not the reason you go. I'm trying to figure out, when you say that there are these features of a public school education, I don't think you go -- if you're in a public school in -- in Maine, that your interest isn't, oh, I'm so glad Official 1 I'm here because you don't have a lot of Catholicism here. I think you go for other reasons. And I'm trying to figure out, so when you say a "rough equivalent" of that, what are you talking about?

Christopher C. Taub: Again, a rough equivalent is an education that is religiously neutral. That is the defining feature of a public education. That is the education that the state wants to provide to children. Now, if families and children want a different benefit, if they want an education that inculcates religious beliefs, that's their right, but that's not --

Justice Alito: Suppose parents want to send their child, using this money, to an elite private school, Exeter, Andover, Miss Porter's. That would be okay, right?

Christopher C. Taub: Yes, those schools would likely be approved.

Justice Alito: And -- and they would provide the equivalent of the -- a rough equivalent of a public education?

Christopher C. Taub: Yes, they would.

Justice Alito: They would? Official

Christopher C. Taub: Yes. The defining feature of a public education is that it's religiously neutral. Now you could go to Andover --

Justice Alito: So, when you say a public education, all you mean is a secular education. That's what you mean?

Christopher C. Taub: That is the defining feature. And -- and what I would say, Your Honor --

Justice Alito: So you have to have a --

Christopher C. Taub: -- is that if you went to --

Justice Alito: -- that that's -- you have to have a compelling interest in providing a purely secular education in the funded -- in the schools to which these students wish to go?

Christopher C. Taub: Your Honor, if you went into any private school, even take Andover Academy, I mean, certainly, there are going to be trappings there that are going to be much different than -- than trappings in a public school. But, at the end of the day, your chemistry class is going to be taught the same Official 1 as a public school chemistry class. Your science and religion -- and math classes are going to be taught the same way. And -- and the one thing that's not going to be occurring in those schools is that they're not going to be inculcating children with a particular religion. So, yes, an Andover or a Phillips Exeter may be different from Bangor Public High School in many different ways, but what they share in common is the most important feature, which is that they are not inculcating religion.

Justice Gorsuch: So, counsel --

Chief Justice Roberts: Counsel --

Justice Gorsuch: I'm sorry, Chief. After you.

Chief Justice Roberts: I just -- let's suppose you have two schools. School A is run by Religion A, and -- and that religion has a doctrine that they should provide service to their -- their neighbors. So they're running -- set up and running a school, but there's nothing in their -- in their doctrine about propagating the faith or whatever, so it does look just like a public school, but it's owned by religion. Religion B also has a school, but its Official 1 doctrine requires adherence to educate children in the faith, and the -- the school is infused in every subject with their view of the faith. Now would the first school get the funds?

Christopher C. Taub: Yes.

Chief Justice Roberts: Okay. Would the second school?

Christopher C. Taub: No.

Chief Justice Roberts: And that's because of the difference between the two religions, right?

Christopher C. Taub: That's because they are -- their -- their program is specifically instilling and promoting --

Chief Justice Roberts: Right.

Christopher C. Taub: -- religion in students, and --

Chief Justice Roberts: And the other religion does not?

Christopher C. Taub: That -- that is correct.

Chief Justice Roberts: So you're discriminating among religions based on their belief, right?

Christopher C. Taub: No, I would not say that. Official 1 Religions can have whatever belief they want, but if they want to take part in Maine's tuition program, the education service they have to provide has to be the service that Maine is purchasing.

Chief Justice Roberts: Well, and one religion says that's what they do with education, and the other religion says, no, we use it to propagate the faith. So it is the beliefs of the two religions that determines whether or not their schools are going to get the funds or not. And -- and we have said that that is the most basic violation of the -- the First Amendment religion clauses, for the government to draw distinctions between religions based on their doctrine.

Christopher C. Taub: Again, Your Honor, we're not -- we're not drawing those distinctions based on doctrine. We are drawing those distinctions based on -- on what the school is going to promote. And let me just give you a hypothetical. If -- if -- if there were a school that was -- that was -- that was run by Official 1 an organization that felt it was critical to have part of the program be to inculcate religious beliefs, if -- if that school otherwise provided a public education, and let's say it had chapel services and a class that was intended to instill religion, if -- if those classes were optional, it's likely that that state -- that that school would -- would be eligible for the Maine tuition program. What the state is not going to provide public funding to is a school that is going to require students to take part in programs that are intended to instill religion.

Chief Justice Roberts: Well, to follow that up, you say likely. I mean, are we supposed to put weight on that in deciding the case, that that is, in fact, what's going to happen?

Christopher C. Taub: Well, Your Honor, what we have in this record, we have a facial challenge and we have an as-applied challenge, and the as-applied challenge relates to two very specific schools. And it's completely clear from the record that -- that those two schools are -- are not of the type of the school that Official 1 I'm hypothesizing about. And so, if we ever had a school like that, the Department of Education would look carefully at it. But, you know, I think you'll see in the record that -- that one of the questions the Department has asked in the past is: I see you have a chapel service. Is that a mandatory chapel service?

Chief Justice Roberts: Okay. So let's say the school is -- you know, some subjects are more susceptible to religious infusion than others. So half of the classes are religious. You know, when they teach literature, it's from a religious perspective. You know, when they teach calculus or chemistry, it's -- it's -- it's not. So they -- what do they do? Do they get the full amount of the credit, or do they get half the amount?

Christopher C. Taub: No, this is -- I mean, what Maine is doing is it's paying the tuition for that student to attend that school. This isn't -- this isn't the kind of program where we can segregate out certain funds to go to one part and certain --

Chief Justice Roberts: Okay. So you Official 1 make a judgment of whether the school qualifies and you look at how much -- how -- how serious are they about infusing the subjects with religion?

Christopher C. Taub: Not how serious they are, Your Honor, but -- but if --

Chief Justice Roberts: Or to what extent they do.

Christopher C. Taub: So -- and -- and -- and what I will say is that -- is that the schools self-identify themselves. This is not a situation where you have government officials --

Chief Justice Roberts: Okay. A school comes in and says, I identify myself as a 50 percent sectarian school and a 50 percent non-sectarian. They get the full credit?

Christopher C. Taub: We would ask them what are you doing as -- as part of the sectarian portion of your program. And -- and if that portion of the program is -- is designed to instill religious beliefs --

Chief Justice Roberts: Right.

Christopher C. Taub: -- and students are required to attend that part of the program, then it's unlikely that that school would -- Official 1 would -- would be eligible for -- for any portion of the tuition program.

Chief Justice Roberts: Well, I don't understand. I think we've gone from likely to -- to -- to unlikely.

Christopher C. Taub: Well --

Chief Justice Roberts: Are you saying that if they just had one chapel service every -- every day or -- or let's just say that they take a religious perspective on -- on history, just that. Are they going to likely be qualified or likely -- unlikely?

Christopher C. Taub: So, you know, these are hypotheticals that the Department of Education would have to look at. But -- but what I can say is that if a school had a mandatory chapel service where this was a religious chapel service --

Chief Justice Roberts: All right. Let's skip the chapel service and say it's just mandatory history class, but they have a particular view of the Crusades that not everybody might share.

Christopher C. Taub: You know, Your Honor, as I sit here today, I cannot answer that -- that Official 1 question. That -- that would be a much tougher situation. It's one that's never presented itself in Maine. And what we have here are -- are two schools that are very much different from -- from those kinds of hypothetical schools. It -- it -- it might be that there could be an as-applied challenge brought down the line. If -- if you had a school come forward like Your Honor is -- is speculating about and we denied funding for that school because we didn't like the fact that religion was taught or that the Crusades were taught from a particular perspective, that school could easily bring a challenge, and -- and then a court would decide whether what -- whether what Maine did is appropriate or not. But -- but what I don't think is appropriate is -- is for the Court to decide the case based on hypothetical situations that -- that have never occurred in the state.

Justice Alito: Well, suppose that a -- a school is affiliated with a religious group and they say, we do infuse our religious beliefs into all aspects of the community, but our Official 1 salient -- our salient religious beliefs are that all people are created equal and that nobody should be treated -- should be subjected to any form of invidious discrimination and that everybody is worthy of respect and should be treated with dignity and that everybody has an obligation to make contributions to the community and engage in charitable work, those are our religious beliefs and we don't -- we don't really have any dogma, but these are principles that we think our students should keep in mind, consistent with the religious outlook of our community. Would that school be disqualified?

Christopher C. Taub: So, I mean, that would be very close to a public school. Public schools often have a set of values that they want to instill: public service, be kind to others, be generous. I think what -- what -- what the defining feature or what -- or -- or what would make the difference is -- is whether children are being taught that your religion demands that you do these things, that -- that your religion demands -- Official

Justice Alito: Well, then you really are discriminating on the basis of religious belief. What I described is, I think, pretty close to Unitarian Universalism, isn't it? And that is a -- that is a religious community. So that would be okay. That religious community is okay. They can have a school that inculcates students with their beliefs because those are okay religious beliefs, but other religious beliefs, no. Isn't that -- is that what Maine is doing?

Christopher C. Taub: Well, what I'm saying, Your Honor, is that -- and -- and, again, this is what I said in response to the Chief Justice's questions -- is that -- is that we have two schools here at issue. There are other schools that could come in the future that are going to pose thornier questions, and, again, those might be challenges that could be brought at that point. So, you know, I can't sit here and -- and tell you whether or not the Department of Education would approve a Unitarian school. We would just have to know more information about what their curriculum is and -- and how they're Official 1 teaching it. It would be a process where they --

Justice Alito: Well, unless you can say that you would treat a Unitarian school the same as a Christian school or an Orthodox Jewish school or a Catholic school, then I think you've got a problem of discrimination among religious groups --

Christopher C. Taub: So, I mean --

Justice Alito: -- regardless of the --

Christopher C. Taub: -- part of the challenge here --

Justice Alito: -- regardless of religious group that is affiliated with the particular school that is at issue in the case before us.

Christopher C. Taub: So -- so part of the challenge here, I think, you know, is -- is in part the definition of religion itself, and -- and that is an issue that this Court has struggled with over the years in cases like IRS tax exemptions and conscientious objector status. And so questions always come up about whether -- is this thing a religion or is it Official 1 something else? And I think that most people, you know, would believe that Unitarianism is a religion. It --- it might be not be premised on the existence of a supreme being, but I think most people would -- would agree that Unitarianism is a kind of religion. I might be wrong about that, but -- but I think that Unitarianism is commonly considered a religion. And so, if that is the case, then -- then a school that is promoting Unitarian beliefs would not be eligible for the program.

Justice Gorsuch: Counsel, my -- my understanding of the record is that this theory that Miss Porter's and the -- and the Cate School in California provide a public education or rough equivalent to one in Maine is a -- a relatively recent phenomenon, that -- that before I believe it was 1980, Maine did allow local religious schools to participate in this program and that it changed course only because of a perhaps mistaken view about Establishment Clause precedents and that the Maine Supreme Court found that that was the only reason why Maine changed course. Official 1 So isn't this whole discussion of rough equivalent of public schools something of a post hoc justification?

Christopher C. Taub: It's not, Your Honor. It is true that -- that -- that there was a time period when religious schools were eligible for the program. The Attorney General authored an opinion which I think most scholars and courts at the time would have concluded was accurate that included --

Justice Gorsuch: Well, I don't doubt it was in good faith, but you'd agree that that was the reason why Maine changed course?

Christopher C. Taub: That -- that was the reason, but I think what's significant is then after -- after Zelman came out, the Maine legislature understood that maybe that they could include religious schools in the program, and so there was debate about whether to remove the religious exemption. And if you look at -- at -- at -- at the statements made during the debate, it's -- it's clear that the -- that -- that the legislators who were opposed to -- to -- to -- to removing the exclusion had interests Official 1 different than Establishment Clause concerns. They had concerns about making sure that a public education is religiously neutral, that it's -- it's -- it's inclusive, that it's not discriminatory. So I think -- and -- and the fact that --

Justice Gorsuch: There were debates after the Attorney General changed position, but the -- the change was due to the Attorney General's opinion? Is that right?

Christopher C. Taub: That -- that -- that was the change that was made in 1981.

Justice Gorsuch: Okay. All right. And then I -- I do want to understand this theory. So a -- a -- a private entity can provide a -- a public education in Maine?

Christopher C. Taub: Yes.

Justice Gorsuch: A private entity in California can?

Christopher C. Taub: A private -- yes.

Justice Gorsuch: It just can't have too much religious entanglement?

Christopher C. Taub: It's not that it has too much religious entanglement. It's that -- Official

Justice Gorsuch: Well, some might be okay, but some --

Christopher C. Taub: It's --

Justice Gorsuch: -- some might not be --

Christopher C. Taub: Well --

Justice Gorsuch: -- I believe was your answer to the Chief Justice.

Christopher C. Taub: -- the ones that would not be okay are the ones that are instilling religious beliefs in children.

Justice Gorsuch: Okay. How does that not discriminate against minority religious viewpoints or ones that are unorthodox because some -- and favor religions that are more watered down, some might say, or more -- more majoritarian, more comfortable with what a -- what a -- a bureaucrat in Bangor might say?

Christopher C. Taub: I don't see that that's -- that's an issue at all. This isn't an issue about how watered down the religion is. This is an issue just about -- about whether religious beliefs are -- are being instilled. Whether those are watered-down religious beliefs or more vigorous -- Official

Justice Gorsuch: Oh, but -- but I thought some were okay, but there comes a line that it's too much.

Christopher C. Taub: No, there -- there's -- there's -- there's no -- there -- there -- there is not a school that instills religious beliefs that would be eligible for -- for our program.

Justice Gorsuch: Thank you.

Chief Justice Roberts: Justice Thomas? Justice Breyer?

Justice Breyer: I would like to ask you, because Mr. Bindas said, which is -- leaving my views out of it, which have been in dissents and so forth, that this really is the same as Zelman. I mean, in Zelman, the -- the state provides -- provided tuition money so that the children's parents could choose what religious school to go to. That's pretty much, I think, my recollection is. And so what's the difference here?

Christopher C. Taub: So --

Justice Breyer: This parent chooses a school and the state supplies some money. Official

Christopher C. Taub: So the first important point is that Zelman was about what a state is permitted to do, not what about a state is required to do. So -- so, in Zelman, this Court said that it was permissible for the state to allow the school vouchers to be used at religious schools. But -- but the other significant aspect is that in Zelman, the state was providing a program for -- for parents who wanted to opt out of the public school system, for -- for parents who wanted to send their kids to private schools because of a failing public school system. In Maine, our -- our tuition program is part and parcel to our public schools. It's -- it's available for that very tiny percentage of kids who live in districts who otherwise wouldn't be able to receive a public education. It is only those children who are allowed to participate in this tuition program. And so --

Justice Breyer: So you're -- for you to basically win, it seems to me, you would have to fall within the -- what Justice Kagan said is this -- this area where the state has a degree Official 1 of leeway, is that right?

Christopher C. Taub: Yes. I think -- I think there's two ways that we win. I think the one -- the first way we win is if the Court agrees that this is part of Maine's public education program. And then I think the other way that we can win is if the Court agrees that when -- that when it comes to spending programs, just like with free speech, the state is allowed to use its pocketbook to promote the values that it has decided it wants to promote. And so this is a spending program, and what Maine wants to -- wants to advance is religious neutrality. We want schools to be neither --

Justice Breyer: I --

Christopher C. Taub: -- for nor against any particular religion.

Justice Breyer: -- I got it. Okay.

Chief Justice Roberts: Justice Alito?

Justice Alito: Well, on that point, suppose a school inculcates a purely materialistic view of life. Would that be -- would that be okay?

Christopher C. Taub: So, I mean, this is Official 1 something that we -- that we've thought about, and I think there -- there are other aspects of -- of -- of what a school could do that would be inconsistent with a public education. Now what the Maine legislature had in front of it was it had a set of -- of sectarian schools and it had a set of secular schools, and -- and the one thing that the legislature knew is that it did not want to have schools that inculcate religion as part of the public education program. Now it's possible that, you know, down the road some school might pop up that is teaching something else, not religion but something else, say, Marxism or Leninism or, you know, white supremacy. Clearly, those kinds of schools would be doing something completely inconsistent with a public education.

Justice Alito: But, as of now, that would not prohibit a parent from getting funding to send a child to one of those schools?

Christopher C. Taub: So, be -- be -- because those are hypothetical situations that the legislature has never had to confront, it hasn't addressed that in the legislation. Official 1 But there's no doubt, Your Honor, that if a white supremacy school tried to participate in Maine's program, the legislature would swiftly act to say, no, you know, beyond being religiously neutral, you also can't teach principles of -- of -- of hatred.

Justice Alito: I understand that. But, as of now, the only thing that you want to make sure that the schools that are covered by this cannot do is that they can't inculcate religion --

Christopher C. Taub: Yeah, I mean -- I mean --

Justice Alito: -- even if it's -- you know, even if it's a religion that promotes tolerance of all religious beliefs, if it's religiously based, no?

Christopher C. Taub: Again, I mean, I don't want to quibble with -- with words, but it's not just that it's religiously based. It's that it's instilling religion in the children who attend that. And -- and that is because that is the defining characteristic and I think this Court has recognized that that's a defining characteristic of a public education. And so -- so that is the thing that Official 1 the legislature has controlled for because that's what actually exists on the ground. We actually have schools that instill religious beliefs. We -- we don't have schools that are instilling Leninism or white supremacy.

Chief Justice Roberts: Justice Sotomayor?

Justice Kagan: But just to follow up on that point, you're confident that that would -- that kind of school would not be funded because -- a white supremacist school, because it's outside the bounds of your program, is that right?

Christopher C. Taub: I mean, yes, Your Honor. I -- I think it's -- it's -- it's unfair for -- for the -- for a legislature to be expected to legislate against every hypothetical outlandish situation that could come forward. So it's incredibly unlikely that we would ever have a white supremacy school applying to become part of our public school program. But knowing what I know about Maine and our legislature, that school would -- there -- a way would be found to ensure that that school is not allowed to participate. Official

Justice Alito: Well --

Justice Kagan: Do you --

Justice Alito: -- could I follow up? I'm sorry.

Justice Kagan: No, please.

Justice Alito: No, go ahead.

Justice Kagan: Go ahead.

Justice Alito: Would you say the same thing about a school that teaches critical race theory?

Christopher C. Taub: Whether that school would be eligible?

Justice Alito: Yeah.

Christopher C. Taub: So I think that that is something that the legislature would have to look at. I mean, that one's closer because, frankly, I don't -- I don't really know exactly what it means to teach critical race theory. So I think -- I think the Maine legislature would have to look at what that actually means. But -- but I -- I will say this, that -- that if -- that -- that if teaching critical race theory is -- is -- is antithetical to a public education, then the legislature would likely address that. Official

Chief Justice Roberts: Justice Kagan?

Justice Kagan: You've been asked quite a number of questions on your time up there about, you know, hard cases, also sort of odd cases. I just want to know what's the hardest case you have actually -- the Department of Education has actually ever been confronted with in this area?

Christopher C. Taub: So we've never really had a hard case. In 20 years worth of records, we've identified three schools where there was any issue raised about whether they were eligible. The first school was a seminary school, and so that was clearly ineligible. We told them that, and we never heard back. There was another school that, even though it indicated it was -- it was non-sectarian, it -- it disclosed or -- or a Department of Education official learned that -- that "its" -- "its student life centers around our chapel." And it also had a religious affiliation. And so the state responded that it doesn't look like you're eligible, but, if you want to provide us with more information, we'll Official 1 consider it, and we never heard anything more from that school. And then the third -- the third school, the Cardigan Mountain School, was a -- a school that we identified as having a chapel, and so we -- we wrote to the school and said, is this a mandatory chapel service? And they said, well, it is, but the chapel is just the biggest building that we have on campus, and so, when we have our student assemblies, that's where we hold them, but there's nothing religious that goes on there. And so we said, okay, that's fine. Those are the only -- in 20 years, those are the only situations that we have had where we've had to make those kinds of decisions.

Justice Kagan: I mean, I would think all the religious schools I know of -- and, you know, it could be Catholic schools or it could be evangelical Christian schools or it could be Muslim schools or Jewish schools of any persuasion, not just Orthodox but any Jewish schools, I mean, if somebody said to them, are you a religious school, they would have no Official 1 trouble saying, yes, we are, right?

Christopher C. Taub: They're not trying to hide this, Your Honor. They're proud of it, and they should be. I mean, these schools have an important place in our community. And so they're not trying to hide or -- or pull a fast one over us. They're proud of -- of being a school that instills religion, and they will tell us that.

Justice Kagan: Thank you.

Chief Justice Roberts: Justice Gorsuch?

Justice Gorsuch: Yeah, just to follow up on that. So the Cardigan school had a chapel in the middle of campus, and it was allowed to participate.

Christopher C. Taub: Yes.

Justice Gorsuch: But the Kent school, which was the second one you mentioned, though you didn't identify it by name, an Episcopal school, said it's not owned or affiliated with the church, but it was not allowed to participate, right?

Christopher C. Taub: Well, what we told the school is that, based on our review, because you Official 1 say that your life centers around your chapel and be -- because --

Justice Gorsuch: Right. It was not allowed to participate, right?

Christopher C. Taub: Well, they were invited to provide more information.

Justice Gorsuch: More information, but they were denied at that time?

Christopher C. Taub: Yes.

Justice Gorsuch: Okay. So somebody in Maine, in Bangor, has to sit down and decide Cardigan good/Kent bad, right?

Christopher C. Taub: Yes, Your Honor, but these were easy calls to make.

Chief Justice Roberts: Justice Kavanaugh?

Justice Kavanaugh: If -- if the state said that you can use the funds for a secular private school or a Protestant private school but not a Catholic or Jewish or Muslim private school or any other religious private school, I assume you would agree that would be problematic?

Christopher C. Taub: Of course, Your Honor.

Justice Kavanaugh: Okay. So, when it Official 1 says that you can use it for a secular private school but not a Protestant, Catholic, Jewish, or Muslim or any other religious private school, you say that's -- that's okay, though?

Christopher C. Taub: Well, I mean, I think that this Court has recognized, for example, in the school prayer cases that -- that the -- the absence of religion isn't -- isn't animosity towards religion. So what we are trying to achieve are schools that are religiously neutral. And -- and -- and just to be clear --

Justice Kavanaugh: But if you -- keep going.

Christopher C. Taub: -- if -- if -- if -- if there were a school that -- that teached sort of antireligion, that -- that -- that taught kids that there is no God, that you should reject all religion, that school wouldn't be eligible either. What we want is religious neutrality.

Justice Kavanaugh: But the -- the problem, I think, and the tension with what you just said as to those two questions is that our case law suggests that discriminating against all religions, as compared to secular, Official 1 comparable secular, is discriminatory, just as it is discriminatory to say exclude the Catholic and the Jewish and include the Protestant. And so it's not exclusion of religious people and religious institutions from public benefits solely because they're religious is itself discriminatory. So how do -- I mean, we said that Trinity Lutheran said odious to our Constitution. How do you deal with -- with that?

Christopher C. Taub: So I think there's a nuance going on here that I just want to make sure I can clarify, that -- that I think that there -- there is a difference between sort of state regulations, in other words, like state prohibitions, and -- and state programs that are providing funding. And so I think, when it comes -- when it comes to prohibitions, a state can't discriminate based on status or use. So you can't -- you -- you can't say a person can't be Catholic and you also can't say that a person can't take Communion. I also think, when it comes to subsidy Official 1 programs, there, you can't discriminate based on status. So you can't say that we have a playground program, but you can't -- you're not eligible if you're religious. But I think that there's a fourth category, and -- and the fourth category is a subsidy program that -- where -- where the subsidy is being used for a specific purpose, and it excludes purposes that are -- that are contrary to what the government is trying to establish and are going to be used to directly advance religion. I think that is the one very narrow category where there is a real distinction between status and use.

Justice Kavanaugh: One last question, which is to pick up on Justice Breyer's questions earlier, which I think identified a real issue here, which is strife that is created. But what do you say to -- to those who would say, by excluding someone who's religious from a state program and creating this feeling of exclusion for people who are told your school isn't good enough solely because it's religious, go to Exeter or Andover, but you can't go to the Official 1 Bangor Christian or the DeMatha or whatever the religious school is, doesn't that also create a possibility of -- of strife?

Christopher C. Taub: So a few points there, Your Honor. I -- I think what the real strife would be, first of all, I think there would be strife among parents who live in districts that have public schools or contract with schools, because I think the strife there would be, how come I can't send my kids to religious schools at public expense but these other kids can? So I think that -- that -- that's one source of strife. I think another source of strife would be trying to explain to taxpayers in Maine why your money is being used to go to a school that teaches that boys are better than girls, that actively discriminates against certain protected classes. So I think that's -- that that's a second element of strife. But I think the other point I want to make is -- is we are not telling people that you can't go to a school because you're religious. There are plenty of people in Maine who want to send their kids to religious schools for reasons wholly unrelated to the religious aspects of the Official 1 school. It might be because they have a better hockey team or they have better academics or they just have more discipline. And -- and we tell the same thing to those parents. It's not that you're religious that you can't go to that school. It's just those schools aren't eligible for our program.

Justice Kavanaugh: Appreciate your answers. Thank you.

Chief Justice Roberts: Justice Barrett?

Justice Barrett: I have one -- I have a question, but I have one quick follow-up to an answer you gave Justice Kavanaugh. You said that if a private secular school taught that all religions were bad, religions were bigoted, that they would not be eligible for participation in Maine's program. Why? That's not sectarian, is it?

Christopher C. Taub: Well, the -- the goal of the program is religious neutrality. And so, you know, we've -- we've never heard of a school that's sort of antireligious, a school that teaches that all religion is bad. But -- but it's clear that such a school would not be Official 1 religiously neutral. And so, because the whole purpose of the program is to --

Justice Barrett: But the statute says non-sectarian. It doesn't say religiously neutral, right?

Christopher C. Taub: Well, that's true. But -- but I think that -- that -- that the spirit and purpose of the program -- and -- and -- and we've talked about this with the commissioner of the Department of Education, and -- and -- and her position is -- is the same as ours, that -- that a school that is -- that is antireligious is not religiously neutral, and so it would not qualify for this program.

Justice Barrett: Thank you. And my question is as follows. It kind of goes back to Justice Thomas's questions about rough equivalent of a public school. So all schools, in making choices about curriculum and the formation of children, have to come from some belief system. And in public schools, the public school -- the school boards, the districts are making that choice, those choice of classes to be taught and the kind of values that they want to inculcate in Official 1 the students. Is there any kind -- I mean, how would you even know if a -- if a school taught all religions are bigoted and biased or, you know, Catholics are bigoted or, you know -- or we take a position on the Jewish-Palestinian conflict because of our position on, you know, Jews, right? How would they even know? Because it's my understanding that in choosing whether a non-sectarian school can be funded or not, you're not engaging in that kind of oversight about what the belief systems are of the school. So long as they're not sectarian, it's a thumbs-up?

Christopher C. Taub: So I will answer that -- that question, Your Honor. Obviously, I will answer your -- your question, but -- but I -- I just -- I just want to make this point first because this might be lost in -- in the record. Over 99.8 percent of children in Maine go either to a public school or one of what we call the Big 11, which are schools that enroll at least 60 percent publicly funded students but -- but, in reality, enroll more like 95 percent Official 1 publicly funded students. So it's -- it's only .2 percent of students that are going to other private schools. And the Department of Education is very familiar with the curriculum at the Big 11. So -- so the Department is very comfortable that when it comes to those schools where almost every student is going, we know what's being taught there. But -- but, to answer Your Honor's question, there is a process that schools have to go through to become part of our program, and through that process, if a Department of Education official says -- sees information that -- that -- that the school seems to be teaching antireligious views, that would raise a red flag, and -- and that would result in the kind of inkling --

Justice Barrett: But it was my understanding that that wasn't part of -- just based on the record, and I may not understand it, but as it was laid out in the briefs, it was my understanding that if the school is accredited, that there weren't particular curricula requirements the school had to satisfy Official 1 to be eligible for participation in the program. You know, a school, for example, could be single sex. It didn't have to be co-ed. And I assume all the public schools in Maine are co-ed. I mean, it didn't have to match up along all of those metrics and that there was no formal examination into what kinds of values that the school was seeking to inculcate in students.

Christopher C. Taub: That is true, but -- but what the Department of Education does when it gets a new school apply is it does a little homework, and so it'll go to the school's website and say, okay, I've never heard of this school before, I want to learn a little about it. Or maybe it takes a look at the student handbook. And, you know, if the first sentence in the handbook says that our school is designed to promote white supremacy interests or our school is designed to promote antireligion, that is going to be a flag that's going to get tripped, and that's going to result in the kind of inquiry. So you're absolutely right, Your Official 1 Honor, that -- that -- that the schools are not submitting their curriculum to us as part of this process.

Justice Barrett: And there's no visit to the school? There's no talking to the teachers? There's no -- it's just kind of what you can find on the website? And that's not -- that's not pertinent to the statute because the statutory requirement is simply sectarian/non-sectarian?

Christopher C. Taub: Yeah. I mean, in just the run-of-the-mill cases, these schools are well-known to us. They check off a box saying they're either sectarian or non-sectarian.

Justice Barrett: Okay. I -- I understand the Big 11.

Christopher C. Taub: Yeah.

Justice Barrett: But I think you answered my question for these.

Christopher C. Taub: No, but -- but that's true for -- for all schools.

Justice Barrett: Okay. Thank you.

Chief Justice Roberts: Thank you, counsel. Mr. Stewart. Official 1 ORAL ARGUMENT OF MALCOLM L. STEWART FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENT

Malcolm L. Stewart: Thank you, Mr. Chief Justice, and may it please the Court: The judgment of the court of appeals upholding Maine's sectarian school exclusion should be affirmed. That is so for three basic reasons. First, the government has far greater latitude when it simply declines to fund particular speech or religious exercise than when it imposes affirmative barriers to that speech or exercise. Second, Maine has a legitimate anti-establishment interest in declining to fund the religious exercise in which Temple Academy and BCS engage, even if the federal Establishment Clause would permit the state to fund those schools. Third, the religious instruction these schools provide is, by the schools' own account, not severable from the secular components of their instructional programs. I welcome the Court's questions. Official

Justice Thomas: Mr. Stewart, what exactly is an anti-establishment interest and where does it come from?

Malcolm L. Stewart: The frame -- the framers adopted the anti- -- the Establishment Clause out of concern that excessive closeness between government and religion could harm both government and religion and cause public discord. And when we refer to an anti-establishment interest, what we mean is state, local, and the federal government should have significant latitude, the play in the joints to which Justice Kagan referred, to attempt to prevent those harms from occurring, even in circumstances where the federal Establishment Clause would not compel them to act. For example, this Court has held that state and local legislatures can begin their sessions with a brief prayer. But I think it would be extravagant to suggest that any legislative body is required to do so. If a particular state or a particular local legislature said, within our jurisdiction, this practice has caused more harm than it has Official 1 good, it has caused discord, people believe that we are preferring particular religions even though that was not our intent, it could discontinue the practice. It would be going beyond what the federal Establishment Clause requires, but it would still be pursuing legitimate anti-establishment interests in the sense of attempting to prevent the general harms at which the Establishment Clause is directed. And I'd say it's entirely clear that's the way it works on the Free Exercise Clause -- on the free exercise side. That is, it's uncontroversial that governments can do more to accommodate religion than the Free Exercise Clause requires. And so sometimes this is done at a fairly particular level where there's a -- a specific state law, a specific prohibition, and a specific religious exemption. Sometimes it's done at a more wholesale level, like with RFRA and RLUIPA, where the federal -- the Congress says, in a wide variety of context, you have to make certain accommodations to religious practice, even though the Free Exercise Clause Official 1 itself would not require that. It's natural in that circumstance to speak of the government vindicating free exercise values or pursuing free exercise interests, even though the Free Exercise Clause doesn't compel that sort of action. And as Justice Kagan also suggested, different states and localities could decide to do it differently. One state could decide we will adopt religious exemptions to generally applicable laws only when the Free Exercise Clause requires us to do that. Another state or locality could say we're going to be significantly more accommodating because that's more in keeping with our traditions and it's more in keeping with what we perceive to be the likely public reaction to the various steps that we might take. So -- so there -- there -- as the Court has often emphasized, the Establishment Clause and the Free Exercise Clause, they may in some sense be in tension, but they don't compel a single course of action, that there is room for play in the joints, room for the -- the Official 1 government to exercise discretion as to what balance it wants to strike. The -- the next thing I'd want to say is this is a case about what the government has to subsidize, what it has to fund. It's not a case about the government either imposing affirmative restraints on religion or denying generally applicable benefits to persons based on religious exercise outside the program. And I did want to speak to the question that Justice Gorsuch raised about the part in our brief that said parents can still send their children for religious instruction after school or on weekends. It was not our intent to suggest that most religious parents will or should regard that as a fully satisfactory alternative. Our principal point --

Justice Gorsuch: I mean, in fact, that would be pretty offensive to religious beliefs, right?

Malcolm L. Stewart: It would be -- it -- we are not trying to tell the parents what they should do with their children.

Justice Gorsuch: Well -- Official

Malcolm L. Stewart: Our -- our primary --

Justice Gorsuch: -- and -- and -- and you'd agree that, you know, in Thomas, for example, this Court's made clear that -- that you -- you don't have to choose between receiving a public benefit and your faith, right?

Malcolm L. Stewart: That -- that's correct. But the question is -- the question is not whether you can be denied the unrelated benefit based on your faith or based on your religious practice. It's whether the government has to subsidize the religious practice itself, and --

Justice Gorsuch: Fair -- fair enough. But, once it creates the program, here, we have a program that's been created, and I think that goes back to the Chief Justice's point that, you know, maybe they didn't have to create a program. But, once -- once they do, to suggest that you don't have to choose between participation in the program and your faith because you can send your children to Sunday School or to a Bible Study program at night seems to suggest favoritism toward religions -- Official 1 just react to this -- seems to favor religions for whom that is an adequate substitute and discriminate against religions for whom that is not an adequate substitute.

Malcolm L. Stewart: I -- I think the state is behaving neutrally in the sense that it says we will fund secular education. We will not fund religious instruction or an inculcation. And it may be that to members of some religions that will be a greater practical burden than to others, but that doesn't --

Justice Gorsuch: So, to the Orthodox Jewish family, it is a burden, and to the Protestant family, it may not be?

Malcolm L. Stewart: I -- I guess I would speak -- I -- I -- I --

Justice Gorsuch: You agree that's the practical reality of the program?

Malcolm L. Stewart: I mean, obviously, parents who would like to send their children to religious schools full time during the day are burdened by this rule in a way that parents who have no interest in doing so would not be. But -- but, to speak to a -- a hypothetical that the Chief Justice raised, if Official 1 -- if, for instance, the state decided we will provide aid for refurbishing athletic facilities and it will be available to secular and to religious schools alike, and -- some religious schools have robust athletic programs and they would benefit significantly from the assistance. Another religious school might say: Participation in athletics is contrary to our religious values. This money is useless to us. If it's confined to -- to that parameter -- within those parameters, we would like the money to use it for something that is as important to us as athletics is to some other schools. Clearly, they'd have no valid free exercise claim. The state has chosen to subsidize certain activities and not others. It's done so on a religiously neutral basis. It may be that that aid will be, practically speaking, more valuable to members of some religions than to others, but that doesn't create a constitutional violation.

Justice Kavanaugh: But, at its core, Mr. Stewart, you're suggesting that with, say, two neighbors in -- in Maine, in a neighborhood, and they both -- there's not a public school Official 100 available, and the first neighbor says: We're going to send our child, children, to secular private school, they get the benefit. The next-door neighbor says: Well, we want to send our children to a religious private school, and they're not going to get the benefit. And I don't see how your suggestion that the subsidy changes the analysis. That's just discrimination on the basis of religion right there at -- at the neighborhood level.

Malcolm L. Stewart: Well, first, as Mr. Taub said, it's not discrimination based on the -- the religion of the parents. Some parents obviously send their children to religious schools because they share the religious values. Other parents may send the -- the children to religious schools for a combination of other reasons. And -- and so there is a disparity in treatment. It's not necessarily a disparity based on the religion of the parents. But the --

Justice Kavanaugh: Well, that's slicing it pretty thin in the real world, I think. It's discrimination against the Official 101 different schools because of the religion and people who prefer those schools, prefer religious schools over secular schools.

Malcolm L. Stewart: But -- but I think the -- still, the -- the response is the state is behaving neutrally in the sense that it will fund secular education and not religious education. And that -- that seems especially appropriate in a program like this one that, as Justice Kagan was -- was saying earlier, it's not intended to provide the broadest range of possible choices. It's intended to provide a substitute for public education in Maine.

Justice Kavanaugh: Why isn't it treating people neutrally to tell them you're all equal citizens without respect to your religion, and so too all the schools that are accredited are equal without respect to their religion, whether you're secular, Catholic, Jewish, what have you, you're all going to be treated equally? Isn't that the -- the neutral position, is to suggest your religion does not affect your qualification for a particular public benefit, your religion or lack of Official 102 religion doesn't affect your -- your qualifications in our society?

Malcolm L. Stewart: I -- I mean, first, the state, as your question pointed out earlier, certain -- certainly couldn't distinguish among religions. It couldn't provide the funds to the Catholic school but --

Justice Kavanaugh: Okay. And to stop you there, I think the lesson of some of the cases is discriminating against all religions versus secular is itself a kind of discrimination that the Court has said is odious to the Constitution at least in certain contexts.

Malcolm L. Stewart: I -- I think that's a -- a valid general principle. I think the question is whether to decline to fund religious instruction while you are funding secular instruction is a form of discrimination.

Justice Breyer: Well, what is it --

Malcolm L. Stewart: And I think that -- that there -- there is a sort of secular analog to this where, in cases like Regan and in Cammarano versus United States, if -- if a federal or state tax code says a business can take a Official 103 business expense deduction for the money it spends advertising its product, but it can't take a deduction for lobbying expenses or for expenses on electoral advocacy, that -- that -- a distinction like that doesn't rest on any idea that electoral advocacy and lobbying are disfavored speech or that they are less important. To -- to the contrary, they're the most important types of speech. But the government in the secular sphere can legitimately decide that precisely because the topics addressed in lobbying and electoral advocacy are so important and because there is such a diversity of views on those subjects, the government is going to stay clear of anything that looks like funding or subsidizing that speech. And -- and, historically, the government has had the same latitude with respect to religious inculcation. It can't penalize people in some unrelated sphere because they have engaged in religious instruction of their children, but it can decline to fund the religious instruction itself.

Justice Alito: If a state -- if a law Official 104 like this drew a distinction between schools that teach that all religion is bad and schools that teach that religion is good, would that be permissible in the view of the government?

Malcolm L. Stewart: No, it would not be, I think essentially for the same reason that a law that provided the money to Catholic schools but not to Jewish schools would -- would be no good, it would be a denominational preference. We don't think, though, that --

Justice Alito: Well, do you see anything in the Maine statute that would rule out a subsidy for a parent who sends a child to a school that teaches all religions are bad?

Malcolm L. Stewart: I don't see anything in the Maine statute as currently written that would naturally be construed in that way. The -- the -- either the Department of Education or a court in Maine could adopt a limiting construction, or I think more likely, as Mr. Taub said, if it -- if that became a prevalent practice, the legislature could step in. So, while we don't think it would be constitutional for Maine to distinguish on that basis, we don't think that the absence of an Official 105 express provision in the statute to that effect is a basis for striking the statute.

Justice Alito: Don't we have to judge the constitutionality of the statute as it now stands?

Malcolm L. Stewart: Well, I think what they are -- I think we should be asking, is the statute constitutional as applied to these particular Petitioners? And if these Petitioners could point to an example in which a school was approved for funding even though it provided atheistic or antireligious instruction, then that might be a valid basis for an as-applied claim. But the -- the theoretical possibility that could happen is -- is not a ground for invalidating the statute. And, obviously, the -- the Court has dealt with a lot of funding programs and a lot of issues under both the Establishment Clause and the Free Exercise Clause, deciding certain practices are constitutional or not. I don't know of any case in which the Court has said the absence from this statute of some express exclusion for atheist schools is Official 106 itself a basis for striking the law down. If -- if I may, I'd like to say just one -- if I may, I'd like to say just --

Justice Gorsuch: Mr. Stewart, I do -- I do have one question. I -- I -- I just want to confirm my understanding. I -- I didn't see in the government's brief any strict reliance or suggestion that the Court should rely on a status-use distinction. Rather, I saw this analogy to government speech. Is that right?

Malcolm L. Stewart: Well, I think we are advocating the status-use distinction, but I think -- not -- not the analogy to government speech so much because I don't think it's necessary to treat this as government speech. We are relying on the principle in the Free Speech Clause cases that the government has substantially more latitude when it declines --

Justice Gorsuch: I -- I'm sorry. That's what I meant to say, as opposed to a strict reliance on a status-use distinction.

Malcolm L. Stewart: I -- I think our view is the status-use distinction is just different words for the same concept. That is, the --

Justice Gorsuch: Well, the government Official 107 -- the government wouldn't -- I mean, maybe it would. Does the government see a basis for distinguishing between a tax on persons who wear yarmulkes as opposed to a tax on Jewish persons, to borrow from one of our cases?

Malcolm L. Stewart: No, but we don't view the status-use distinction as being based, as -- as Justice Kagan was saying earlier, on a distinction between religious belief and religious conduct. We -- we think the status-use distinction means, on the one hand, the state can decline to fund your religious exercise, but it cannot define -- decline to give you an unrelated benefit based on the fact that you have engaged in religious exercise outside the program.

Chief Justice Roberts: Thank you, Mr. Stewart. What is your answer to the questions I -- I posed to your friend from Maine about the two churches, one that doesn't have a religious interest in infusing the school with its -- with its religion but -- or -- or it does? Its -- its religious value is service to others, and they're doing that by providing a perfectly secular school, and the other that has Official 108 the religious teaching that it should infuse its children with the values of the faith and they have a school like that? As I understood it, we have -- the former school can participate in this program, but the latter cannot.

Malcolm L. Stewart: I -- I -- that is correct. And I think, even though it might appear in -- in one sense to be discriminatory, it actually avoids a more insidious form of discrimination. That is, there are a lot of circumstances in which the government decides to fund or subsidize activities that it believes to be in the public interest. And the general rule is, as long as you are prepared to do those things, you're entitled to the funding whether you're religious or not. And if we said that the person who did those things with a religious reason in mind is going to be treated differently from the person who did them with purely secular motivations, that would be problematic. And to -- to take your hypothetical and -- and compare it to a situation in the public schools, as Mr. Taub was pointing out, Official 109 public schools attempt to teach virtues like honesty, trustworthiness, kindness, consideration for those less fortunate, and, certainly, those are essentially secular values. They certainly correspond to values that many people hold as a matter of religious conviction. But there's no question those values could be taught in the public schools. And if a particular public school teacher was especially committed to those values because of her religion, that wouldn't be a problem. But, if the teacher at the public school said you should behave in this way because that was the way that Jesus Christ behaved and he was the son of God, that would be problematic. We would look at the content of the instruction the public school teacher was providing, not her internal motivation for speaking as she did.

Chief Justice Roberts: Thank you. Justice Thomas?

Justice Thomas: No questions, Chief.

Chief Justice Roberts: Justice Breyer?

Justice Breyer: I -- I might ask this Official 110 because it's related to what Justice Kavanaugh said and -- and what you're saying. I mean, it is discriminatory against religion, but I think the Establishment Clause problem or interest underlying it forever has been beware if the government gets too involved. One, people will think the government favors some things as opposed to others and that that will cause strife. Two, the Vietnamese boat people will have no problem in Los Angeles, but they sure will in Maine because there aren't enough of them. And there are a lot of religious people who will say, why are you preferring the Catholics or the Jews to the Vietnamese boat people? See? And you say I have an answer to the discrimination, there aren't enough of you. Oh, oh, I see. Minority, okay. But there's a third one which you haven't mentioned, which I learned out of a case in the First Circuit, which was really tough, religious reason for teaching about Honduras in the geography class in way X. School board says way X, you can't do it; you're disqualified as a teacher. They say but that's how we're supposed Official 111 to do it, okay? And I have never seen emotions rise so high in a courtroom. And, suddenly, you get into teaching that involves worship and religious principle. You don't know what kinds of inter-religion or why are you doing it for the religious people but not me, I'm not religious, dah, dah, dah, dah, dah. The strife that can be involved. All right. Now I thought that was a good reason why Zelman was wrong, but my colleagues did not. Now we have, in fact, a different issue: Can a state have a different judgment than Ohio? Can Maine differ from Ohio? That's the issue. All right? Hey, we have a principle, we have 50 states and a huge country, and so why not, I say, let some decide one way, let some decide the other. They have different kinds of populations. Now you see what I have? I have a great theory. Is there any law supporting that?

Malcolm L. Stewart: Oh, I think there's the law that I referred to and that Justice Kagan referred to, the idea of the play in the joints, the idea that there is a fairly significant Official 112 sphere of activity in which the state can legitimately choose either to fund or not to fund religious institutions. And in making that decision, state and local legislators can -- cannot just decide what would be the best solution for the whole country. Legislators in a particular part of the country can decide, where we live, excluding the religious schools would be more likely to be perceived as a form of religious discrimination and to cause turmoil, and, therefore, we won't do it. In another part of the country, the legislators might say including the religious institutions is more likely to cause strife. Obviously, there are limits. Espinoza and Trinity Lutheran made clear that you can't exclude the institution all -- altogether with respect to secular activities, but there is significant room for regional variation.

Chief Justice Roberts: Justice Alito?

Justice Alito: If the program allowed parents to send their children to any accredited school anywhere in the country, which is what this program seems to allow, with the exception of so-called sectarian schools, would -- how Official 113 would that cause strife? And add into that the fact we're told that Maine didn't rule out these schools until -- for many, many years, the parents were permitted to send their -- their children to those schools. Was there -- are you aware of a history of strife? Explain -- you know, it's one thing to say strife. Could you explain in more concrete terms how you see a potential for religious strife arising out of the acceptance of the Petitioners' argument here?

Malcolm L. Stewart: I think, first, to speak to the history briefly, until 19 -- it was in 1980 that the Maine attorney general first analyzed the question, and the attorney general said, I think it would be unconstitutional under then extant Supreme Court precedent to fund sectarian schools, and he explained that he meant schools whose dominant purpose is the promotion of religious beliefs. And -- but, after Zelman was decided in 2003, the Maine legislature reexamined the question, decided to maintain the bar in effect on the books based on independent reasons. But, to -- to speak to the strife Official 114 point in particular, I think it is likely, contrary to what was said earlier, that allowing the subsidy for religious schools will tend to favor -- favor majoritarian religions because, in order to have a religious school, you don't have -- you have to have more than a single adherent to a particular belief system. You have to have a critical mass of people within the community who are willing to support the school. And so those are going to tend to be religions of majoritarian schools. And there is at least the spectacle as -- the specter, as Mr. Taub said, of people in the community saying: You are funding religions other than our own, and you are funding religious schools that promulgate beliefs that are antithetical to ours.

Chief Justice Roberts: Justice Sotomayor?

Justice Sotomayor: You know, I look at the history in this area and what I see is that at the founding there weren't public schools. They were self-taught, but most of the schools were private. And, yes, there's a Official 115 history of some states, not all, subsidizing some religious schools. And then we have later a movement -- much later -- a movement towards public schools. But what I don't see after the creation of public schools is a tradition of history -- or history of continued support of religious schools. Am I reading the history right?

Malcolm L. Stewart: I mean, I don't -- I don't want to speak too categorically. I think you're right, there was a movement in the direction of public education. It, of course, wasn't until the 1960s that this Court issued the school prayer decision, so -- so it wasn't even until fairly recently that the Court said you can't have an overt religious component in the public schools. So I -- I think what we would draw from the history is different governmental units have done it different ways at different points in time, and that may weigh in favor of an argument that particular practices should be permissible under the Establishment Clause, but it shouldn't preclude particular states from deciding we don't want to do this here. Official

Justice Sotomayor: Thank you.

Chief Justice Roberts: Justice Kagan?

Justice Kagan: Mr. -- Mr. Stewart, how should we analyze the standing question here? I mean, the Petitioners here say, look, your -- what this legislation does is to prevent us from even seeking a school that would accept the money, and so the fact that we haven't come up with a particular school that would accept the money and that meets our religious criteria is irrelevant. Why isn't that right?

Malcolm L. Stewart: I mean, the cases they were relying on were the Northeastern Florida General Contractors case and Heckler versus Mathews, which I believe was a sex-based disparity in public benefits. And -- and in both of those cases, the plaintiff himself was saying, I have suffered direct overt discrimination in the sense that the law I am challenging subjects me to unfavorable treatment based upon my own characteristics. And -- and we don't have that here. Maine law doesn't distinguish between religious and non-religious parents. The Petitioners are not challenging any aspect of the Maine statute Official 117 that defines the class of parents who can seek the tuition subsidy. The provision it challenges is the provision that says what characteristics does the school have to have in order for the school to be -- get approved school status and potentially be eligible for the funds. And I think it's entirely clear that if the schools were the plaintiffs and all they were willing to say is, if this is struck down, we would think about accepting the money, that wouldn't be good enough under a case -- a more recent case like Carney versus Adams. And so, if the plaintiffs' claim is essentially derivative of an alleged constitutional wrong done to the schools, it would be anomalous to say that the plaintiffs have standing even though the schools do not.

Chief Justice Roberts: Justice Gorsuch?

Justice Gorsuch: Would the government -- I -- I -- I can't believe it would, but -- but would the government permit an argument of -- for discrimination against persons based on an unsupported hypothetical possibility of Official 118 strife if the discrimination were based on race or sex or some other basis like that?

Malcolm L. Stewart: It -- it depends on what you mean by discrimination. Ordinarily, you could not impose affirmative disadvantages, but government can make funding decisions all the time, can decide what activities to subsidize and what activities not to subsidize based on fairly speculative inferences about what results might occur. That -- that's -- that's the whole point of the government's -- of the Court's free speech cases that say the government has a lot more latitude when it's making funding decisions.

Justice Gorsuch: Including on the basis of sex and race and other personal characteristics like that?

Malcolm L. Stewart: No. And I -- if -- if the statute here said that religious parents generally or parents of a particular religion can't apply for the school subsidy, that would clearly be no good. Here -- here, what the state is saying is we don't want to subsidize --

Justice Gorsuch: So, if we viewed the Official 119 statute as you just described it, it would be no good in your terms?

Malcolm L. Stewart: If -- if you read the statute to say that religious parents can't seek the subsidy even for a secular school, but --

Justice Gorsuch: Then the statute would be no good.

Malcolm L. Stewart: Then the statute would be unconstitutional.

Justice Gorsuch: Okay. Thank you.

Malcolm L. Stewart: But nobody is reading that way. Petitioners are not arguing that that's what the statute says.

Chief Justice Roberts: Justice Kavanaugh?

Justice Kavanaugh: I just want to follow up on that question from Justice Gorsuch. I think it's important on this public discord or -- or strife issue to emphasize that, as I understand it, they are seeking equal treatment, not special treatment. They're -- they're saying don't treat me worse because I want to send my children to a religious school rather than a secular school. Treat me the same as the secular parent next Official 120 door. I think that's what they're asking for, is equal treatment. Special treatment cases are where you're asking for an exemption from generally applicable law. That's the Smith kind of cases. Those are -- those are hard cases. But, here, I think all they're asking for is equal treatment. And the question then becomes public discord from equal treatment -- to follow up on Justice Gorsuch's question -- how should we think about that?

Malcolm L. Stewart: I mean, I -- they are certainly characterizing what they are asking for as equal treatment. But Maine's view and our view is they are seeking a benefit different from the one that Maine is willing to provide. Maine is willing to provide a secular education, an education that is the rough analog to what the public school would give you at state expense. It's not willing to pay for religious inculcation. And so it's -- it's like a case where the school that doesn't believe in athletics says, I'm being treated unequally because you are willing to fund a thing that is important to Official 121 some other schools but not to me. That -- that's not the kind of equal treatment that either the Free Speech Clause or the Free Exercise Clause would prohibit.

Justice Kavanaugh: Thank you.

Chief Justice Roberts: Justice Barrett? Thank you, counsel.

Malcolm L. Stewart: Thank you.

Chief Justice Roberts: Rebuttal, Mr. Bindas. REBUTTAL ARGUMENT OF MICHAEL BINDAS ON BEHALF OF THE PETITIONERS

Michael Bindas: Starting with the United States' arguments, this absolutely discriminates against parents. It says you can get an otherwise available public benefit you are statutorily entitled to so long as you don't exercise a right that this Court recognized in Espinoza. You get one or the other. If you're the Carsons, you can afford it, great, you keep your free exercise rights. If you're the Nelsons, you can't afford it, you forego your free exercise rights. That is discrimination no Official 122 matter how you slice it, and this Court should not allow that to stand. Now my friend from Maine, you know, throughout the briefing has recast the benefit in this case. Now we're recasting the facts and saying based on how the spirit, I believe I heard correctly, how the spirit of the program works. Well, the spirit of the program doesn't look at whether or not religious instruction or activities are optional. After all, the Kent school was excluded. Chapel was optional. Theology was offered. No one had to take it. Yet they were excluded. My friend from Maine also says that this -- this only triggers -- the sectarian exclusion only triggers if the school is actually instilling, inculcating, requiring you to believe. Well, what did the Commissioner testify? That it's triggered if the school promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith. You don't have to -- you don't have to Official 123 say you must believe this to be excluded. In a philosophy class, apparently, you can teach Aquinas and Augustine. But, if you say Augustine and Aquinas were right, then, apparently, you're out, again, based on the decision of a bureaucrat in Augusta about whether the way the material is being presented is through the lens of faith. And the last thing I would say, the benefit here is not a free public education. It's certainly not free. Miss Porter's charges $66,400 a year. You have to pay much of that, most of that, if you go there with a tuition benefit. This is not a free education. Nor are the participating private schools like a public school or providing a public education in any sense of the word. They need not follow the public school curriculum. They can discriminate on bases that public schools may not. They can, as I just mentioned, charge tuition to the tune of $66,000 a year. They need not hire cert -- state-certified teachers, which Maine public schools must do. They can be run by religious organizations and orders. Official 124 Obviously, a public school in Maine may not. It can be unlike a public school in every one of those respects and participate in this program. But a religious school that is like a public school in every one of those respects is excluded if it teaches a single religion class or presents material that someone in Augusta determines to be presented through the lens of faith. That is discrimination. This Court should not allow it to stand. It should hold the sectarian exclusion unconstitutional. Thank you.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:57 a.m., the case was submitted.)