Dec 8, 2021

Supreme Court Hears Arguments on Public Funds for Religious Schools Transcript

Supreme Court Hears Arguments on Free Speech Rights Transcript April 28
RevBlogTranscriptsSupreme Court Hears Arguments on Public Funds for Religious Schools Transcript

The Supreme Court heard oral arguments on December 8, 2021 over the whether public funds can be used for private religious schools. Read the transcript here.

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Speaker 1: (03:14)
The honorable the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez, oyez, oyez, all persons having business before the honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the court is now sitting. God save the United States and this honorable court.

Chief Justice: (03:48)
We will hear argument first this morning in case 201088, Carson versus Makin. Mr. Bindas?

Mr. Bindas: (03:59)
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 the state is perfectly free to discriminate against students or schools because they do religious things, such as teach or receive instruction in religion.

Mr. Bindas: (04:47)
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.

Mr. Bindas: (05:17)
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.

Mr. Bindas: (05:43)
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 Gorsuch: (06:00)
Counsel, neither of the two schools that you talk about ,discuss has indicated that it will accept students who receive state funding or subsidies. So would you discuss just briefly then, whether or not you have standing?

Mr. Bindas: (06:22)
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.

Mr. Bindas: (06:52)
And this court’s decisions in cases such as Northeastern Florida Chapter of Associated General Contractors, Heckler versus Matthews, make it clear that when a plaintiff is challenging 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 Matthews, it was a foregone conclusion that if the 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.

Mr. Bindas: (07:39)
This court held that nevertheless, even though it was a foregone conclusion, the plaintiff would not get the benefit. He nevertheless had standing [crosstalk 00:07:48].

Justice Kagan: (07:48)
So Mr. Bindas, does that mean that if there were only two schools in the state that met the petitioner’s religious requirements, so only two schools that the petitioners would go to, would use this money for, 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?

Mr. Bindas: (08:15)
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. Now-

Justice Kagan: (08:33)
So the answer to my question is yes, that even if all the schools that meet the petitioner’s religious requirement make clear that they’re not going to accept this money, we still have a case before us?

Mr. Bindas: (08:45)
Your honor, what I would want to know in that situation is whether the plaintiffs had alleged that they will not go to any other school but these two schools, whether… 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.

Speaker 2: (09:12)
Well, would the Nelsons go to any place besides the Temple Academy?

Mr. Bindas: (09:15)
Well, your honor, the Nelsons alleged, and 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 [crosstalk 00:09:33].

Speaker 2: (09:33)
But I thought they identified Temple Academy as the place that they wanted to send their child.

Mr. Bindas: (09:38)
They did. Well, and they 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 [crosstalk 00:09:54]

Speaker 2: (09:53)
Okay. 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.

Mr. Bindas: (10:00)
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: (10:09)
Do you know whether there are other schools that align with their sincerely held religious beliefs in that way?

Mr. Bindas: (10:16)
Your honor, 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 denial of the opportunity to even seek out such a school that is the constitutional injury here.

Mr. Bindas: (10:34)
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 ultimately decide not to participate here, I think the problem here is that we don’t know that. Maine’s argument is essentially that these schools might be excluded at step two, three, four. The problem is there’s an absolute barrier at step one. Maine stipulated, this is at 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.

Mr. Bindas: (11:24)
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 one. Maine wants to say, “Well, we might do this or that at step two, three, or four, 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 one [crosstalk 00:11:54]

Justice Breyer: (11:53)
On this particular point, I take it the reason is something like that their religious beliefs and the school’s beliefs, 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 woman and a bunch of other things like that. Am I right about that?

Mr. Bindas: (12:15)
Your honor, that these schools hold traditional-

Justice Breyer: (12:19)
Did I state it roughly right?

Mr. Bindas: (12:22)
Your honor, I don’t know that that’s-

Justice Breyer: (12:25)
Well, then tell me whether… I read this. Is it right or not right? Because I have a question and it depends. This is not my question. I need to know this as background.

Mr. Bindas: (12:37)
Well [crosstalk 00:12:38].

Justice Breyer: (12:38)
There are beliefs that no gay students, no gay teachers, man is superior to women and a few other things like that. Is that right?

Mr. Bindas: (12:47)
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 [crosstalk 00:12:52].

Justice Breyer: (12:51)
No gay teachers.

Mr. Bindas: (12:54)
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 [crosstalk 00:13:01].

Justice Breyer: (13:01)
So what happens to the Temple school, if that’s their religious belief, they don’t want sincerely to have the gay teacher, and the Human Rights Act says, “Yes, you have to.” What happens?

Mr. Bindas: (13:10)
The Maine Human Rights Act says the opposite, your honor. There is an absolute [crosstalk 00:13:14].

Justice Breyer: (13:13)
That says you cannot discriminate on the basis of sexual orientation. Is that what it says?

Mr. Bindas: (13:19)
In hiring, there is an absolute protection, your honor, for [crosstalk 00:13:23]

Justice Breyer: (13:23)
And suppose the religious belief is the opposite.

Mr. Bindas: (13:28)
Your honor [crosstalk 00:13:29].

Justice Breyer: (13:29)
Oh, I see. The Maine rights act says the religion can do this. Well, what does it say? I’m sorry.

Mr. Bindas: (13:34)
There’s a provision that says a religious employer can require that its employees adhere to the religion’s tenets. There is an absolute exemption.

Justice Breyer: (13:44)
I see [crosstalk 00:13:45].

Mr. Bindas: (13:45)
Maine neglects dimension in its briefing.

Justice Breyer: (13:47)
And so what’s the problem with the school accepting the money?

Mr. Bindas: (13:51)
Your honor, so far as I see it, there is no problem. [crosstalk 00:13:54].

Justice Breyer: (13:54)
Maybe there isn’t a standing problem. But 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 that if the state must give money to the schools, they’re going to get into all kinds of religious disputes. One state says, “No, in this kind of a situation, you’ve got to hire the gay teacher.” The other says, “Yes,” the other says, “No,” the other says one thing, the other says the other, and religious beliefs of course are very sincere and held very strongly.

Justice Breyer: (14:40)
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 practicing religious organizations. And that seems to me to stick its head up in a lot of different aspects of this case, but that’s what’s underlying my problem.

Mr. Bindas: (15:09)
Sure, your honor. And I think the court has he addressed that 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 [crosstalk 00:15:38]

Chief Justice: (15:38)
Let’s consider whether that’s not the case. Let’s say a state has, thinks the schools around the state are… They need better physical facilities. They have a program, 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.” Is that discrimination against the religious schools? [crosstalk 00:16:11] it is, but is that okay or not?

Mr. Bindas: (16:12)
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. Public school, private.”

Justice Sotomayor: (16:32)
Can I add 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? All parents can do that.

Mr. Bindas: (16:47)
To free public secular schools or to the private school of their choice, your honor.

Justice Sotomayor: (16:51)
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?

Mr. Bindas: (17:02)
No, your honor. So the benefit is defined by the statute-

Justice Sotomayor: (17:04)
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?

Mr. Bindas: (17:15)
If you live in a district that has a public school [crosstalk 00:17:18]

Justice Sotomayor: (17:18)
All right. So in that case, are you arguing that the state has to finance the parent?

Mr. Bindas: (17:24)
Oh, not at all, your honor. No.

Justice Sotomayor: (17:25)
No, because they’re offering a free public education, correct?

Mr. Bindas: (17:29)
Not for that reason, your honor. There is no constitutional requirement as this court held in [crosstalk 00:17:35]

Justice Sotomayor: (17:35)
All right. In that situation, the parent pays for the religious training of their child.

Mr. Bindas: (17:40)
If they desire religious school as opposed to going into the public school, yes.

Justice Sotomayor: (17:44)
All right. And the district could contract with the school to provide the public education, correct?

Mr. Bindas: (17:55)
If the district lacks a public school, then it can contract with a school to send its resident students. Yes.

Justice Sotomayor: (18:00)
Do you take the position that the school has to, that the district has to permit or contract with a religious school to provide [crosstalk 00:18:12].

Mr. Bindas: (18:12)
No, your honor. At footnote nine in our opening brief, we say the opposite, that in that situation where the government is contracting with a school to educate its resident students, that school would have to provide secular instruction.

Justice Sotomayor: (18:22)
And the parents have to pay then for the religious training of their children.

Mr. Bindas: (18:27)
If they don’t want to go to the school with which the government has contracted, and they desire religious education, yes.

Justice Sotomayor: (18:33)
So it’s only because the school has, the district has decided to give you money to find a secular education that you say there’s discrimination?

Mr. Bindas: (18:48)
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 [crosstalk 00:19:09]

Justice Sotomayor: (19:09)
No, no, no. Because you leave out out what they say is, you can pick any school you want for a secular education.

Mr. Bindas: (19:17)
Well, and-

Justice Sotomayor: (19:18)
They don’t say, because they permit religious schools that don’t teach or describe themselves as non-sectarian to receive benefits. These parents are put through 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.

Mr. Bindas: (19:48)
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: (19:58)
They’re getting more than other parents.

Mr. Bindas: (20:01)
Just as [crosstalk 00:20:02].

Justice Sotomayor: (20:01)
Most other parents have only one choice, send them to the public school if it exists, send them to the contractor school that exists, or don’t.

Mr. Bindas: (20:12)
And that’s always true with the school choice program, your honor. That was true in Zelman. That program was specific [crosstalk 00:20:17].

Justice Kagan: (20:17)
One way to make Justice Sotomayor’s point, I think, is to ask whether this is different from a typical school choice program. 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 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.

Justice Kagan: (21:05)
And I think one question here is whether we should view that in the same way as a Zelman, we love choice program.

Mr. Bindas: (21:15)
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 provided the benefit that-

Justice Kagan: (21:29)
Yes, but it was a district- wide program. This is not working for us. We want to use an entirely different system. That’s not Maine’s issue here.

Mr. Bindas: (21:38)
Oh, well, your honor, I think it is. And 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 as 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 in Maine, there were options outside of Maine.

Mr. Bindas: (22:02)
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.

Mr. Bindas: (22:24)
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 Whitters, if it wasn’t clear after Zobrest, if it wasn’t clear after Zelman that that was wrong, it was certainly clear… well, it certainly was clear after Zelman, yet the state continues stand by this [crosstalk 00:22:51]

Justice Kagan: (22:50)
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 decision. And we all know that doing religious things is justice protected is being religious. And of course, nobody would argue with that. I mean, you couldn’t to put somebody in jail for being religious and you couldn’t put somebody in jail for doing religious things. So, you know, in the, 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.

Justice Kagan: (23:49)
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 religion different? Why does the state have to? Not… some states want to, but this state doesn’t want to. Why does the state have to, have to subsidize the exercise of a right?

Mr. Bindas: (24:16)
Your honor, this is not subsidizing 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: (24:44)
,State can define and 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 don’t want to define the program so broadly as to raise all these questions of religious favoritism, religious division, and so forth.

Mr. Bindas: (25:19)
Your honor, in a program like Rust or Reagan, 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.

Mr. Bindas: (25:44)
Moreover, in Rust the doctors were not forced 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 right. You cannot get both. It’s one or the other [crosstalk 00:26:10]

Justice Gorsuch: (26:10)
On that, I believe the government’s response, and I think this is what Justice Kagan’s getting at, is in Rust, the question is whether you’re put to a choice. And here, the government says there is no choice that you’re put to because individuals can still educate their children in religion by sending them to, I think it’s afterschool programs or Saturday or Sunday programs. What are your thoughts about that?

Mr. Bindas: (26:38)
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.

Mr. Bindas: (27:02)
Now, in making that argument that somehow this is all okay, this discrimination is okay because you can go to a weekly Bible study. 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 Reagan, it was substantial lobbying activity. You could still do that simply by 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 benefits.

Justice Gorsuch: (27:51)
Does this affect different religions differently? The government’s argument? Some religions might find a Sunday school perfectly appropriate, others perhaps may not.

Mr. Bindas: (28:04)
I think it does affect different religions differently, your honor. And I think this also 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 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 from 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: (28:51)
Well, the thing is, under law… 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 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 takes that route. And you could say, “Well, 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, the teaching of actually devotional activity. And then there’s the middle, where say give the money to the parents and let them choose. Okay.

Justice Breyer: (29:45)
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. And you start getting into arguments about whether 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, and it’s really awful. 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 the middle of religious activity.

Justice Breyer: (30:22)
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 theme. It probably influences the way I approach these problems. I’m not saying I’m right. I’m asking you, because I want to know what you have, to help me or… Yeah. What do you want to say?

Mr. Bindas: (30:53)
Well, your honor, going back to your three approaches, 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: (31:27)
Yeah. Problem is the government’s paying for it directly. [crosstalk 00:31:31] And they say, 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 then they’re going to have to articulate. You see? And ultimately, while of course the parents can choose which of those two, it’s paid for by the state. And they’ll starts suing each other because government money here going.

Mr. Bindas: (32:04)
Your honor, as this court held in Zelman, any constitutional test that would turn on supposed avoidance of… 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 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. [crosstalk 00:32:51].

Justice Breyer: (32:50)
You cannot refer them as a number. You cannot insist that the social security administration refer to you by a name rather than a number. [crosstalk 00:33:00] forget it. Forget it. Go on Justice Kagan.

Justice Kagan: (33:02)
Zelman was a-

Justice Gorsuch: (33:03)
[crosstalk 00:33:00]. Forget it. Yolanda does this case.

Justice Kagan: (33:03)
And Ms. Zelman 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 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 commanded by the first amendment. And essentially what man is saying here is, “All well and good if a locality or if a state wants to do this,” but we weigh the interests differently, and shouldn’t we be allowed to weigh the interests differently?

Mr. Bindas: (33:53)
Your Honor, 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-

Chief Justice: (34:03)
Finish your thought.

Mr. Bindas: (34:04)
We know that the establishment clause allows it. Ms. 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: (34:18)
But the point here I suppose is this, is that some state would have such programs and love them. And another state says, “For the reasons that Justice Breyer, gave 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 two 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. 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?

Mr. Bindas: (35:19)
Mr. Chief Justice, my time is-

Chief Justice: (35:21)
You can answer the question.

Mr. Bindas: (35:23)
Thank you, Your Honor. In Espinoza, this court specifically rejected any test that would turn on weighing the benefit and the exclusion against some general state interest in avoiding religious conflict. 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: (35:55)
Thank you. Just one additional question, Council, or request, could you articulate for me your best distinction of Locke before you get to the argument that you think it should be overruled?

Mr. Bindas: (36:09)
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 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 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.

Mr. Bindas: (36:54)
As the court noted in footnote four, 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 doesn’t even teach any religion, just teaches secular subjects, if it happens to teach those secular subjects through what a regulator and Augusta determines to be the lens of faith, that school’s out. So the exclusion is completely different. Moreover, Locke, Joshua Davy was not forced to choose. Here, parents must choose.

Chief Justice: (37:33)
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 fishing industry, one for kids who want to focus on tourism, and there’s a seminary that prepares individuals to be priests or pastors? Can they decide not to fund the seminary?

Mr. Bindas: (37:58)
Your Honor, I think if so long as Locke 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 state could make that choice.

Chief Justice: (38:12)
Thank you, Council. Justice Thomas?

Jsutice Thomas: (38:15)
Nothing for me.

Chief Justice: (38:18)
Justice Breyer, anything further? Justice Solimar?

Justice Sotomayor: (38:19)
Yes, 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?

Mr. Bindas: (38:48)
Religion is a part of the curriculum. Yes, Your Honor.

Justice Sotomayor: (38:50)
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.

Mr. Bindas: (39:05)
Well that-

Justice Sotomayor: (39:06)
And I repeat, even their science courses are limited in their reach because of their belief in certain… Or disbelief in certain theories of science.

Mr. Bindas: (39:20)
I don’t know that there’s anything in the record on that, Your Honor. And to the extent the state 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 state of Maine, you have to teach certain curriculum and you have to teach the theory of evolution,” that might-

Justice Sotomayor: (39:40)
That’s okay. Is it okay to say to a school, “You have to take every student and not discriminate on the basis of sex, color, religion, other 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 up to the students, if they meet your academic requirements, you can’t discriminate?”

Mr. Bindas: (40:25)
Well, Your Honor, that’s not this case. But could the state do that? I think you’re looking analytically at a 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 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: (41:13)
Justice Kagan? Justice Gorsuch?

Justice Gorsuch: (41:16)
Yeah. I just want to follow up on that. I just want to be clear in my mind that we’re not being called upon today to interpret Maine’s any discrimination laws and we don’t need to do that to decide this case.

Mr. Bindas: (41:29)
Not at all, Your Honor. Maine has never said these schools will be excluded.

Justice Gorsuch: (41:32)
And the Kent School example, that was a religious school that applied, as I remember, just correct me if I’m wrong, to participate, but was rejected even though it said it was not a sectarian school and said that it was willing to abide by the Maine anti-discrimination laws.

Mr. Bindas: (41:56)
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 one, absolute barrier. But if you get on to the Kent School’s website and look at its policies regarding employment and admissions, it’s plain is day. The school does not discriminate on any of the grounds we’re talking about.

Justice Gorsuch: (42:19)
So religious schools are forbidden regardless whether or not they’re going to participate?

Mr. Bindas: (42:23)
Solely because they are religious.

Justice Kavanaugh: (42:28)
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?

Mr. Bindas: (42:46)
Well, Your Honor, I think the court itself limited it 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 a state’s interest in not funding the training of clergy. So I think on its own terms, it’s limited to that.

Justice Kavanaugh: (43:02)
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 starts funding private schools, it can’t exclude religious private schools and fund secular private schools? Is that correct?

Mr. Bindas: (43:28)
That is correct, Your Honor. 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 indeed not subsidized private education.”

Justice Kavanaugh: (43:39)
Okay. Thank you.

Speaker 2: (43:42)
One follow up on the same lines as Justice Kavanaugh. 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 Porters, “We will pay you X number of dollars to reserve 40 seats in each class 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?

Mr. Bindas: (44:16)
Well, Your Honor, in that situation, what I’d want to know is whether… 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 district is sending?

Speaker 2: (44:32)
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 play you a flat rate. Whether 40 students enroll or not, we want 40 seats for students that lack of public school in their district.

Mr. Bindas: (44:49)
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.

Speaker 2: (44:59)
And when you say much, much different case, are you talking about than a case where there would not be a free exercise claim that could succeed?

Mr. Bindas: (45:05)
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, 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.

Speaker 2: (45:31)
I understand.

Mr. Bindas: (45:31)
If the payment based on defraying the cost of tuition for the number of kids, but-

Speaker 2: (45:36)
No, I understand. 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 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.

Mr. Bindas: (45:54)
Not a penny flows to any school under this program, but for the private and independent choice of families.

Speaker 2: (46:00)
Thank you.

Chief Justice: (46:01)
Thank you, Council.

Speaker 2: (46:02)
Thank you, Your Honor.

Chief Justice: (46:15)
Mr. Todd?

Mr. Todd: (46:16)
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 as recognized that the tuition program at issue here is intended solely to sure that those few children who live in 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.

Mr. Todd: (47:09)
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 is determined that is 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.

Mr. Todd: (47:48)
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 family in Maine is entitled to. Coming at this from a different perspective, this court is made clear that the government is entitled to define the scope of a financial benefit in order to advance its own value judgements 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 Gorsuch: (48:32)
Council in Maine, can a parent decide that they simply do not want to send their child to any school at all?

Mr. Todd: (48:45)
They could homeschool the child.

Justice Gorsuch: (48:47)
No, I mean zero education.

Mr. Todd: (48:50)
No. There is compulsory attendance laws, which must be satisfied.

Justice Gorsuch: (48:52)
So you require them to go to school and in certain areas, you don’t have schools available?

Mr. Todd: (49:01)
That’s correct.

Justice Gorsuch: (49:01)
So if 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 could you say that going to a particular school is a subsidy?

Mr. Todd: (49:12)
How can we say that going to a particular school is a subsidy?

Justice Gorsuch: (49:21)
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 now say it is a benefit or a subsidy, but it is you who required 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.

Mr. Todd: (49:50)
Yes, Your Honor. But this court has made clear that that states have a legitimate interest in compulsory education laws. And-

Justice Gorsuch: (49:56)
Well, I agree. I understand that. I’m not arguing with that, but you have required them to go. It’s one thing if you said, “Look, we will pay for your attendance at a particular 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 want you to explain to me how that is a subsidy if you require them to attend, but you make no provision for it.

Mr. Todd: (50:40)
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 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 Gorsuch: (51:04)
Well, I don’t know how it can be a benefit when you’ve required it. I’m not saying it can’t be a benefit. I think it’s a benefit, but you required. It’s a requirement. Anyway, I’m not going to belabor that, but I am interested in you explaining to me what your term rough equivalent of a public education is. What do you mean by rough equivalent?

Mr. Todd: (51:30)
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 Gorsuch: (51:41)
And what do you mean by that?

Mr. Todd: (51:43)
So what we would consider is an education that doesn’t promote one particular or set of religious beliefs at the exclusion of others. So a school that might teach about different religions, but doesn’t instruct students that they are to follow any particular religion. So it’s neutral and silent when it comes to what religion a child should follow.

Justice Gorsuch: (52:07)
So let’s say I’m in Bangor, Maine 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 academic subjects.

Mr. Todd: (52:26)
Well, Your Honor, if I understand your question, this court has recognized that public schools must be secular, that they-

Justice Gorsuch: (52:34)
No, 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.

Mr. Todd: (52:42)
Well, religion doesn’t come up because it can’t come up. That is the very defining feature of a public school, is that it doesn’t have mandatory prayer, it doesn’t have mandatory worship services.

Justice Gorsuch: (52:52)
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 Maine, that your interest is in, “Oh, I’m so glad 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?

Mr. Todd: (53:24)
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. So that’s not-

Justice Gorsuch: (53:43)
Suppose parents want to send their child using this money to an elite private school, Exeter, Andover, Miss Porters, that would be okay. Right?

Mr. Todd: (53:53)
Yes. Those schools would likely be approved-

Justice Gorsuch: (53:55)
And they would provide a rough equivalent of a public education?

Mr. Todd: (54:00)
Yes, they would.

Justice Gorsuch: (54:01)
They would?

Mr. Todd: (54:01)
Yes. The defining feature of a public education is as religiously neutral. Now you could go to-

Justice Gorsuch: (54:07)
So when you say a public education, all you mean is a secular education? That’s what you mean?

Mr. Todd: (54:12)
That is the defining feature. And what I would say, Your Honor, is that if you went to-

Justice Gorsuch: (54:16)
You have to have a compelling interest in providing a purely secular education in the schools to which these students wish to go?

Mr. Todd: (54:25)
Your Honor, if you went into any private school, even take Andover Academy, certainly there are going to be trappings there that are going to be much different than trappings in a public school. But at the end of the day, your chemistry class is going to be taught the same as a public school chemistry class, your science and math classes are going to be taught the same way. 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’re not inculcating religion.

Jsutice Thomas: (55:04)
So Council-

Chief Justice: (55:04)

Jsutice Thomas: (55:05)
I’m sorry, Chief, after you.

Chief Justice: (55:07)
Let’s suppose you have two schools. School A is run by religion A, and that religion has a doctrine that they should provide service to their neighbors. So they’re set up and running a school, but there’s nothing 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 doctrine requires adherence to educate children in the faith and the school is infused in every subject with their view of the faith. Now would the first school get the funds?

Mr. Todd: (55:50)

Chief Justice: (55:50)
Okay. With the second school?

Mr. Todd: (55:52)

Chief Justice: (55:53)
And that’s because of the difference between the two religions, right?

Mr. Todd: (55:55)
That’s because their program is specifically instilling and promoting religion in students, and-

Chief Justice: (56:02)
Right. And the other religion does not?

Mr. Todd: (56:03)
That is correct.

Chief Justice: (56:04)
So you’re discriminating among religions based on their belief, right?

Mr. Todd: (56:08)
No, I would not say that. 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-

Chief Justice: (56:19)
Well, 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 we have said that that is the most basic violation of the first amendment religion clauses, for the government to draw distinctions between religions based on their doctrine.

Mr. Todd: (56:44)
Again, Your Honor, we’re not drawing those distinctions based on doctrine. We are drawing those distinctions based on what the school is going to promote. And let me just give you a hypothetical, if there were a school that was run by an organization that felt it was critical to have part of the program be to inculcate religious beliefs, 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 those classes were optional, it’s likely that that school 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: (57:35)
Well, to follow that up, you say likely. Are we supposed to put weight on that in deciding the case that that is in fact what’s going to happen?

Mr. Todd: (57:44)
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 those two schools are not of the type of the school that I’m hypothesizing about. And so if we ever had a school like that, the Department of Education would look carefully at it, but I think you’ll see in the record 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: (58:16)
Okay. So let’s say the school is some subjects are more susceptible to religious infusion than others, so half of the classes are religious. When they teach literature, it’s from a religious perspective. When they teach calculus or chemistry, it’s not. So what do they do? Do they get the full amount of the credit or do they get half of the amount?

Mr. Todd: (58:38)
No, what Maine is doing is it’s paying the tuition for that student to attend that school. This isn’t the kind of program where we can segregate out certain funds to go to one part and certain-

Chief Justice: (58:48)
Okay. So you make a judgment of whether the school qualifies and you look at how serious are they about infusing the subjects with religion?

Mr. Todd: (58:57)
Not how serious they are, Your Honor, but if-

Chief Justice: (58:59)
Or to what extent they do.

Mr. Todd: (59:01)
And what I will say is that the schools self-identify themselves. This is not a situation where you have government-

Chief Justice: (59:07)
Okay. So the school comes in and says, “I identify myself as a 50% sectarian school and a 50% non-sectarian,” they get the full credit?

Mr. Todd: (59:17)
We would ask them, “What are you doing as part of the sectarian portion of your program?” And if that portion of the program is designed to instill religious beliefs and students are required to attend that part of the program, then it’s unlikely that that school would be eligible for any portion of the tuition program.

Chief Justice: (59:37)
Well, I don’t understand. I think we’ve gone from likely to unlikely.

Mr. Todd: (59:41)

Chief Justice: (59:41)
Are you saying that if they just had one chapel service every day, or let’s just say that they take a religious perspective on history, just that, are they going to likely be qualified or unlikely?

Mr. Todd: (59:56)
So these are hypothetical that the Department of Education would have to look at, but what I can say is that a school had a mandatory chapel service where this was a religious chapel service-

Chief Justice: (01:00:07)
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.

Mr. Todd: (01:00:16)
Your Honor, as I sit here today, I cannot answer that question. That would be a much tougher situation. It’s on, that’s never present it itself in Maine. And what we have here are two schools that are very much different from those kinds of hypothetical schools. It might be that there could be an as applied challenge brought down the line if you had a school come forward, like Your Honor 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 then a court would decide whether what Maine did is appropriate or not. But what I don’t think is appropriate is for the court to decide the case based on hypothetical situations that have never occurred in the state.

Jsutice Thomas: (01:01:02)
Well suppose that 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 salient religious beliefs are that all people are created equal and that nobody 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 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?

Mr. Todd: (01:01:53)
So, 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 the defining feature or what would make the difference is whether children are being taught that your religion demands that you do these things, that your religion-

Jsutice Thomas: (01:02:16)
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 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. Is that what Maine is doing?

Mr. Todd: (01:02:44)
Well, what I’m saying, Your Honor, and again, this is what I said in response to the Chief Justice’s questions, 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 I can’t sit here 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 how they’re teaching it. It would be a process where they-

Jsutice Thomas: (01:03:14)
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.

Mr. Todd: (01:03:29)

Jsutice Thomas: (01:03:30)
Regardless of the religious group that is affiliated with the particular school that is at issue in the case before us.

Mr. Todd: (01:03:39)
So part of the challenge here, I think is in part the definition of religion itself. 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 is this thing a religion, or is it something else? And I think that most people would believe that Unitarianism is a religion. It might not be premised on the existence of a supreme being, but I think most people would agree that Unitarianism is a kind of religion. I might be wrong about that, but I think that Unitarianism is commonly considered a religion. And so if that is the case, then a school that is promoting Unitarian beliefs would not be eligible for the program.

Justice Sotomayor: (01:04:24)
Council, my understanding of the record is that this theory that Miss Porters and the Kent School in California provide a public education or a rough equivalent to one in Maine is a relatively recent phenomenon that before, I believe was 1980, Maine did allow local religious schools to participate in this program. And then it changed course only because of a perhaps mistaken view about establishment clause precedence, and that the Maine Supreme Court found that that was the only reason why Maine changed course. So isn’t this whole discussion of rough equivalent of public schools something of a post hoc justification.

Mr. Todd: (01:05:10)
It’s not, Your Honor. It is true 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 Sotomayor: (01:05:26)
Well, I don’t doubt it was in good faith, but you’d agree that that was the reason my Maine changed course?

Mr. Todd: (01:05:30)
That was the reason. But I think what’s significant is then 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 the statements made during the debate, it’s clear that the legislators who were opposed to removing the exclusion had interests different than establishment clause concerns. They had concerns about making sure that a public education is religiously neutral-

Mr. Todd: (01:06:03)
They had concerns about making sure that a public education is religiously neutral, that it’s inclusive, that it’s not discriminatory. So I think, and-

Justice Gorsuch: (01:06:10)
So there were debates after the attorney general changed position, but the change was due to the attorney general’s opinion. Is that right?

Mr. Todd: (01:06:18)
That was the change that was made in 1981.

Justice Gorsuch: (01:06:21)
And then I do want to understand this theory. So a private entity can provide a public education in Maine?

Mr. Todd: (01:06:31)

Justice Gorsuch: (01:06:31)
A private entity in California can.

Mr. Todd: (01:06:34)
A private. Yes.

Justice Gorsuch: (01:06:35)
It just can’t have too much religious entanglement.

Mr. Todd: (01:06:38)
It’s not that has too much religious entanglement.

Justice Gorsuch: (01:06:40)
Well, some might be okay, but some might not, I believe was your answer to the Chief Justice.

Mr. Todd: (01:06:46)
The ones that would not be okay are the ones that are instilling religious beliefs in children.

Justice Gorsuch: (01:06:50)
Okay. How does that not discriminate against minority religious viewpoints or ones that are unorthodox, in favor religions that are more watered down, some might say, or more majoritarian, more comfortable with what a bureaucrat in Bangor might say.

Mr. Todd: (01:07:13)
I don’t see that that’s an issue at all. This isn’t an issue about how watered down the religion is. This is an issue just about whether religious beliefs are being instilled. Whether those are watered down religious beliefs or more vigorous-

Justice Gorsuch: (01:07:25)
But I thought some were okay, but there comes a line that it’s too much.

Mr. Todd: (01:07:30)
No. There is not a school that instills religious beliefs that would be eligible for our program.

Chief Justice John G. Roberts, Jr.: (01:07:39)
Thank you.

Chief Justice John G. Roberts, Jr.: (01:07:42)
Mrs. Thomas?

Justice Breyer: (01:07:45)
I would like to ask you, because Mr. Bindus 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 state 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. And so what’s the difference here? This parent chooses a school and the state supplies some money.

Mr. Todd: (01:08:20)
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 the other significant aspect is that in Zelman, the state was providing a program for parents who wanted to opt out of the public school system, for parents who wanted to send their kids to private schools because of a failing public school system. In Maine, our tuition program is part and parcel to our public schools. 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.

Justice Breyer: (01:09:06)
So for you to basically win, it seems to me, you would have to fall within what Justice Kagan said, is this area where the state has a degree of for leeway. Is that right?

Mr. Todd: (01:09:21)
Yes. I think there’s two ways that we win. I think 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 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 advance is religious neutrality. We want schools to be neither for, nor against any particular religion.

Chief Justice John G. Roberts, Jr.: (01:09:56)
[inaudible 01:09:56]

Jsutice Thomas: (01:09:57)
Well, on that point, suppose a school inculcates a purely materialistic view of life. Would that be okay?

Mr. Todd: (01:10:09)
So, I mean, this is something that we’ve thought about. And I think there are other aspects 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 sectarian schools and it had a set of secular schools. And the one thing that the legislature knew is that it did not want to have schools that inculcate religion as part of a public education program. Now, it’s possible that down the road, some school might pop up that is teaching something else, not religion, but something else, say Marxism or Leninism, or white supremacy. Clearly those kinds of schools would be doing something completely inconsistent with a public education.

Jsutice Thomas: (01:10:52)
But as of now, that would not prohibit a parent from getting funding to send a child to one of those.

Mr. Todd: (01:11:00)
So because those are hypothetical situations that the legislature has never had to confront, it hasn’t addressed that in the legislation. 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, beyond being religiously neutral, you also can’t teach principles of hatred.”

Jsutice Thomas: (01:11:20)
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. Even if it’s a religion that promotes tolerance of all religious beliefs, if it’s religiously based, no.

Mr. Todd: (01:11:40)
Again, I don’t want to quibble 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 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 that is the thing that the legislature has controlled for, because that’s what actually exists on the ground. We actually have schools that instill religious beliefs. We don’t have schools that are instilling Leninism or white supremacy.

Chief Justice John G. Roberts, Jr.: (01:12:10)
Justice [inaudible 01:12:11]?

Justice Kagan: (01:12:14)
But just to follow up on that point, you’re confident that that kind of school would not be funded, a white supremacist school, because it’s outside the bounds of your program. Is that right?

Mr. Todd: (01:12:26)
Yes, Your Honor. I think it’s unfair 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… A way would be found to ensure that that school is not allowed to participate.

Jsutice Thomas: (01:12:52)
Could I follow up? I’m sorry.

Justice Kagan: (01:12:53)
No, please.

Jsutice Thomas: (01:12:53)
Go ahead.

Justice Kagan: (01:12:54)
[inaudible 01:12:54]

Jsutice Thomas: (01:12:54)
Would you say the same thing about a school that teaches critical race theory?

Mr. Todd: (01:13:02)
Whether that school would be eligible?

Jsutice Thomas: (01:13:04)

Mr. Todd: (01:13:05)
So I think that that is something the legislation would have to look at. That one’s closer, because frankly I don’t really know exactly what it means to teach critical race theory. So I think the Maine legislature would have to look at what that actually means. But I will say this, that if teaching critical race theory is antithetical to a public education, then the legislature would likely address that.

Chief Justice John G. Roberts, Jr.: (01:13:33)
Justice Kagan?

Justice Kagan: (01:13:34)
You’ve been asked quite a number of questions in your time up about hard cases, also sort of odd cases. I just want to know what’s the hardest case the Department of Education has actually ever been confronted with in this area.

Mr. Todd: (01:13:55)
So we’ve never really had a hard case. In 20 many 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 non-sectarian, it disclosed, or Department of Education official learned that, “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 consider it.” And we never heard anything more from that school.

Mr. Todd: (01:14:42)
And then the third school, the Cardigan Mountain School was a school that we identified as having a chapel. And so 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.” In 20 years, those are the only situations that we have had where we’ve had to make those kinds of decisions.

Justice Kagan: (01:15:13)
As I would think, all the real religious schools I know of… And 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 trouble saying, “Yes, we are.” Right?

Mr. Todd: (01:15:31)
They’re not trying to hide this, Your Honor. They’re proud of it. And they should be. These schools have an important place in our community. And so they’re not trying to hide or pull a fast one over us. They’re proud of being a school that instills religion. And they will tell us that.

Justice Kagan: (01:15:46)
Thank you.

Chief Justice John G. Roberts, Jr.: (01:15:47)

Justice Gorsuch: (01:15:47)
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.

Mr. Todd: (01:15:56)

Justice Gorsuch: (01:15:57)
But the Kent School, which was the second one you mentioned, though you didn’t identify it by name it, an Episcopal school. Said it’s not owned or affiliated with the church, but it was not allowed to participate. Right?

Mr. Todd: (01:16:11)
Well, what we told the school is that based on our review, because you say that your life centers around your chapel-

Justice Gorsuch: (01:16:18)
It was not allowed to participate. Right?

Mr. Todd: (01:16:19)
Well, they were invited to provide more information.

Justice Gorsuch: (01:16:21)
More information, but they were denied at that time.

Mr. Todd: (01:16:23)

Justice Gorsuch: (01:16:23)
Okay. So somebody in Maine, in Bangor has to sit down and decide Cardigan good, Kent bad, right?

Mr. Todd: (01:16:31)
Yes, Your Honor, but these were easy calls to make.

Chief Justice John G. Roberts, Jr.: (01:16:36)
Justice Kavanaugh?

Justice Kavanaugh: (01:16:38)
If the state said that you can use the funds for secular private school or 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.

Mr. Todd: (01:16:56)
Of course, Your Honor.

Justice Kavanaugh: (01:16:57)
Okay. So when it 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 okay, though.

Mr. Todd: (01:17:11)
Well, I think that this court has recognized, for example, in the school prayer cases, that the absence of religion isn’t animosity towards religion. So what we are trying to achieve are schools that are religiously neutral. And just to clear, if there were a school that taught anti-religion, 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: (01:17:42)
But the problem, I think, and the tension with what you just said is to those two questions, is that our case law suggests that discriminating against all religions, as compared to secular, 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 self discriminatory? We said that Trinity Lutheran said, “Odious to our constitution.” How do you deal with that?

Mr. Todd: (01:18:22)
So I think there’s a nuance going on here that I just want to make sure I can clarify, that I think that there is a difference between state regulations, in other words, state prohibitions and state programs that are providing funding. And so I think when it comes to prohibitions, a state can’t discriminate based on status or use. So 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 programs, there you can’t discriminate based on status. So you can’t say that we have a playground program, but you’re not eligible if you’re religious. But I think that there’s a fourth category. And the fourth category is a subsidy program where the subsidy is being used for a specific purpose and it excludes purposes 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: (01:19:29)
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 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 Bangor Christian or the DeMatha or whatever the religious school is.” Doesn’t that also create a possibility of strife?

Mr. Todd: (01:20:10)
So a few points there, Your Honor. I think what the real strife would be… First of all, I think there’d 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’s one source of strife.

Mr. Todd: (01:20:30)
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 a second element of strife. But I think the other point I want to make 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 school. It might be because they have a better hockey team, or they have better academics, or they just have more discipline. And we tell the same thing to those parents. It’s not that your religious just that you can’t go to that school. It’s just those schools aren’t eligible for our program.

Justice Kavanaugh: (01:21:14)
Appreciate your answers. Thank you.

Speaker 2: (01:21:17)
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?

Mr. Todd: (01:21:33)
Well, the goal of the program is religious neutrality. And so, we’ve never heard of a school that’s antireligious, a school that teaches that all religion is bad. But it’s clear that such a school would not be religiously neutral. And so, because the whole purpose of the program-

Speaker 2: (01:21:50)
The statutes are as non-sectarian. It doesn’t say religiously neutral. Right?

Mr. Todd: (01:21:54)
Well, that’s true. But I think that the spirit and purpose of the program… And we’ve talked about this with the Commissioner of the Department of Education, and her position is the same as ours, that a school that is anti-religious is not religiously neutral. And so it would not qualify for this program.

Speaker 2: (01:22:13)
Thank you. And my question is as follows. Kind of goes back to Justice Thomas’ 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 the students. Is there any kind of… I mean, how would you even know if a school taught all religions are bigoted and biased or Catholics are bigoted? Or, “We take a position on the Jewish-Palestinian conflict because of our position 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.

Mr. Todd: (01:23:10)
So I will answer that question, Your Honor. Obviously, I will answer your question, but I just want to make this point first, because this might be lost in the record. Over 99.8% 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% publicly funded students, but in reality, enroll more like 95% publicly funded students. So it’s only 0.2% 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 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.

Mr. Todd: (01:23:54)
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 Department of Education officials says sees information that the school seems to be teaching anti-religious views, that would raise a red flag. And that would result in the kind of-

Speaker 2: (01:24:15)
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 was accredited, that there weren’t particular curricular requirements the school had to satisfy to be eligible for participation in the Crow program. 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.

Mr. Todd: (01:24:46)
That is true, but what the Department of Education does when it gets a new school applying, 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 bit about it.” Or maybe it takes a look at the student handbook. And 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 anti-religion,” 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 Honor, that the schools are not submitting their curriculum to us as part of this process.

Speaker 2: (01:25:19)
And there’s no visit to the school? There’s no talking to the teachers? It’s just what you can find on the website. And that’s not pertinent to the statute, because the statutory requirement is simply secretary and non- sectarian.

Mr. Todd: (01:25:30)
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-

Speaker 2: (01:25:38)
Okay. I understand the Big 11, but I think you answered my question for-

Mr. Todd: (01:25:40)
But that’s true for all schools.

Speaker 2: (01:25:42)
Okay. Thank you.

Chief Justice John G. Roberts, Jr.: (01:25:43)
Thank you, council. Mr. Stewart?

Mr. Stewart: (01:26:03)
Thank you, Mr. Chief Justice. And may it please the court. The judgment of the Court of Appeals upholding Maine 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 opposes 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 school’s own account not severable from the secular components of their instructional programs. I welcome the court’s questions.

Justice Gorsuch: (01:26:52)
Mr. Stewart, what exactly is an anti-establishment interest and where does it come from?

Mr. Stewart: (01:26:58)
The framers adopted 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.

Mr. Stewart: (01:27:34)
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 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 side. That is, it’s uncontroversial that governments can do more to accommodate religion than the Free Exercise Clause requires.

Mr. Stewart: (01:28:35)
And so, sometimes this is done at a fairly particular level where there’s 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 Congress says in a wide variety of context, you have to make certain accommodations to religious practice, even though the Free Exercise Clause 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.

Mr. Stewart: (01:29:16)
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, 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 government to exercise discretion as to what balance it wants to strike.

Mr. Stewart: (01:30:08)
The next thing I 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. 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 principle point-

Justice Gorsuch: (01:30:50)
I mean, in fact, that would be pretty offensive to religious beliefs, right?

Mr. Stewart: (01:30:54)
We are not trying to tell the parents what they should do with their children. Our primary-

Justice Gorsuch: (01:30:59)
And you’d agree that, in Thomas, for example, this courts make clear that you don’t have to choose between receiving a public benefit and your faith, right?

Mr. Stewart: (01:31:08)
That’s correct. But 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.

Justice Gorsuch: (01:31:22)
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 maybe they didn’t have to create a program. But 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. 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.

Mr. Stewart: (01:32:01)
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: (01:32:17)
So to the Orthodox Jewish family, it is a burden. And to the Protestant family, it may not be.

Mr. Stewart: (01:32:24)
I guess I would speak-

Justice Gorsuch: (01:32:26)
You agree that’s the practical reality of the program?

Mr. Stewart: (01:32:28)
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 to speak to a hypothetical that the Chief Justice raised, 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 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: (01:33:41)
But at its core, Mr. Stewart, you’re suggesting that with say two neighbors in Maine, in a neighborhood. And they both… There’s not a public school 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 the neighborhood level.

Mr. Stewart: (01:34:24)
Well, as Mr. Tom said, it’s not discrimination based on 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 children to religious schools for a combination of other reasons. And so there is a disparity in treatment. It’s not necessarily a disparity based on the religion of the parents.

Justice Kavanaugh: (01:34:47)
Well, that’s slicing it pretty thin in the real world, I think. It’s discrimination against the different schools because of the religion and people who prefer those schools, prefer religious schools over secular schools.

Mr. Stewart: (01:34:59)
But I think still the response is the state is behaving neutrally in the sense that it will fund secular education and not religious education. And that seems especially appropriate in a program like this one, that as Justice Kagan 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-

Justice Kavanaugh: (01:35:23)
Why isn’t it treating people neutrally to tell them, “You’re all equal citizens without respect to your religion.”? And so to 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 neutral position, is to suggest your religion does not affect your qualification for a particular public benefit? Your religion or lack of religion doesn’t affect your qualifications in our society.

Mr. Stewart: (01:35:58)
First, the state, as your question pointed earlier, certainly couldn’t distinguish among religions. It couldn’t provide the funds to the Catholic school-

Justice Kavanaugh: (01:36:07)
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 it’s odious to the Constitution, at least in certain context.

Mr. Stewart: (01:36:24)
I think that’s 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. [crosstalk 01:36:35] There is a sort of secular analog to this, where in cases like Regan and in Cammarano versus United States, if a federal or state tax code says a business can take a 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, 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 the contrary, they’re the most important types of speech.

Mr. Stewart: (01:37:11)
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 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.

Jsutice Thomas: (01:37:48)
If a law 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?

Mr. Stewart: (01:38:00)
No, it would not be. I think essentially for the same reason that at a law that provided the money to Catholic schools, but not to Jewish schools would be no good. It would be a denominational preference. We don’t think, though-

Jsutice Thomas: (01:38:13)
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?

Mr. Stewart: (01:38:23)
I don’t see anything in the main statute as currently written that would naturally be construed in that way. Either the Department of Education or a court in Maine could adopt a limiting construction, or I think more likely as Mr. Tom said, 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 expressed provision in the statute to that effect is a basis for striking the statute.

Jsutice Thomas: (01:38:54)
Don’t we have to judge the constitutionality of the statute as it now stands?

Mr. Stewart: (01:38:57)
Well, I think we should be asking, “Is the statute a Constitution…”

Mr. Stewart: (01:39:03)
… 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 a basis for an as applied claim. But the theoretical possibility that could happen is not a ground for invalidating the statute. And obviously 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 itself a basis for striking the law down. If I may, I’d like to say just one [crosstalk 01:39:53] if I may like to say-

Justice Gorsuch: (01:39:54)
Mr. Stewart, I do have one question. I just want to confirm my understanding. I didn’t see in the government’s brief any strict reliance or suggestion the court should rely on a status use distinction. Rather, I saw this analogy to government speech. Is that right?

Mr. Stewart: (01:40:09)
Well, I think we are advocating the status use distinction, but I think 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 and the free speech clause cases that the government has substantially more latitude when it declines [crosstalk 01:40:27]-

Justice Gorsuch: (01:40:27)
I’m sorry. That’s what I meant to say. As opposed to a strict reliance on a status use distinction?

Mr. Stewart: (01:40:31)
I think our view is the status use distinction is just different words for the same concept, that is the [crosstalk 01:40:38].

Justice Gorsuch: (01:40:38)
The government wouldn’t… I mean, maybe it would. Does government see a basis is for distinguishing between attacks on persons who wear yarmulkes as opposed to attacks on Jewish persons to borrow from one of our cases?

Mr. Stewart: (01:40:50)
No, but we don’t view the status use distinction as being based as justice Kagan was saying earlier, on a distinction between religious belief and religious conduct. We think the status use distinction means on the one hand, the state can decline to fund your religious exercise, but it cannot decline to give you an unrelated benefit based on the fact that you have engaged in religious exercise outside the program.

Chief Justice John G. Roberts, Jr.: (01:41:14)
Thank you, Mr. Stewart. What is your answer to the questions 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 religion, or it does, its religious value is service to others and they’re doing that by providing a perfectly secular school, and the other that has 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.

Mr. Stewart: (01:41:57)
That is correct. And I think even though it might appear 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 take your hypothetical and compare it to a situation in the public schools. As Mr. Taub was pointing out, public schools attempt to teach virtues like honesty, trustworthiness, kindness, consideration for those less fortunate.

Mr. Stewart: (01:42:52)
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 John G. Roberts, Jr.: (01:43:31)
Thank you. Justice Thomas?

Justice Gorsuch: (01:43:33)
I have no questions.

Chief Justice John G. Roberts, Jr.: (01:43:33)
Justice Breyer?

Justice Breyer: (01:43:35)
I might ask this because it’s related to what Justice Kavanaugh has said 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? 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 is 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.

Justice Breyer: (01:44:48)
You’re disqualified as a teacher. They say, but that’s how we’re supposed 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 interreligion or why are you doing it for the religious people, but not me? I’m not religious. 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 principal. 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?

Mr. Stewart: (01:45:59)
Oh, I think there’s the law that I’ve referred to and that Justice Kagan referred to, the idea of the play in the joints. The idea that there is a fairly significant sphere of activity in which the state can legitimately choose either to fund or not to fund religious institutions. And in just making that decision, state and local legislators 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 altogether with respect to secular activities, but there is significant room for regional variation.

Chief Justice John G. Roberts, Jr.: (01:46:58)
Justice Alito?

Jsutice Thomas: (01:47:02)
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, how 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 children to those schools. Are you aware of a history of strife? It’s one thing to say strife. Could you explain in more concrete term how you see a potential for religious strife arising out of the acceptance of the petitioner’s argument here?

Mr. Stewart: (01:47:50)
First, to speak to the history briefly, 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 precedents to fund sectarian schools. And he explained that he meant schools whose dominant purpose is the promotion of religious beliefs. 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.

Mr. Stewart: (01:48:25)
But to speak to the strife 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 majoritarian religions, because in order to have a religious school, 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 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 John G. Roberts, Jr.: (01:49:11)
Justice Sotomayor?

Justice Sotomayor: (01:49:13)
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 history of some states, not all, subsidizing some religious schools. And then we have much later a movement towards public schools. But what I don’t see after the creation of public schools is a history of continued support of religious schools. Am I reading the history right?

Mr. Stewart: (01:49:58)
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 it wasn’t even, even until fairly recently that the court said you can’t have an overt religious component in the public schools. So 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.

Justice Sotomayor: (01:50:39)
Thank you.

Chief Justice John G. Roberts, Jr.: (01:50:40)
Justice Kagan?

Justice Kagan: (01:50:42)
Mr. Stewart, how should we analyze the standing question here? I mean, the petitioners here say, look, 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?

Mr. Stewart: (01:51:05)
The cases they were relying on were the Northeastern Florida General Contractors case in Heckler versus Matthews, which I believe leave was a sex based disparity in public benefits. 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 we don’t have that here. Maine law doesn’t distinguish between religious and non-religious parents.

Mr. Stewart: (01:51:38)
The petitioners are not challenging any aspect of the Maine statute 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 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 more recent case like Carney versus Adams. And so if the plaintiff’s 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 John G. Roberts, Jr.: (01:52:27)
Justice Gorsuch?

Justice Gorsuch: (01:52:30)
With the government I can’t believe it would… But would the government permit a argument for discrimination against persons, based on an unsupported, hypothetical possibility of strife, if the discrimination were based on race or sex or some other basis like that?

Mr. Stewart: (01:52:54)
It depends on what you mean by discrimination. No, 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’s the whole point of the court’s free speech cases that say the government has a lot more latitude when it’s making funding decision-

Justice Gorsuch: (01:53:20)
Including on the basis of sex and race and other personal characteristics like that?

Mr. Stewart: (01:53:25)
No. And 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 what the state is saying is we don’t want to subsidize-

Justice Gorsuch: (01:53:40)
So if we viewed the statute as you just described it, it would be no good in your terms?

Mr. Stewart: (01:53:44)
If you read the statute to say that religious parents can’t seek the subsidy even for a secular school, but-

Justice Gorsuch: (01:53:52)
Then the statute would be [crosstalk 01:53:53].

Mr. Stewart: (01:53:52)
… Would be unconstitutional, [crosstalk 01:53:55] but nobody is reading that way. Petitioners are not arguing that that’s what the statute says.

Chief Justice John G. Roberts, Jr.: (01:53:59)
Justice Kavanaugh?

Justice Kavanaugh: (01:54:00)
Just want to follow up on that question from Justice Gorsuch. I think it’s important on this public discord or strife issue to emphasize that as I understand it, they are seeking equal treatment, not special treatment. 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 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 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?

Mr. Stewart: (01:54:49)
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 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 some other schools, but not to me. That’s not the kind of equal treatment that either the free speech clause or the free exercise clause would prohibit.

Justice Kavanaugh: (01:55:33)
Thank you.

Chief Justice John G. Roberts, Jr.: (01:55:36)
Thank you, counsel. Thank you. Rebuttal, Mr. Bindas?

Mr. Bindas: (01:55:43)
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 Nelson’s, you can’t afford it. You forego your free exercise rights. That is discrimination, no matter how you slice it. And this court should not allow that to stand. Now, my friend from Maine, 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.

Mr. Bindas: (01:56:39)
Chapel was optional. Theology was offered, no one had to take it. Yet they were excluded. My friend from Maine also says that the sectarian exclusion only triggers if the school is actually 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 say, you must believe this to be excluded. 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’s being presented, is through the lens of faith. And the last thing I would say, the benefit here is not a free public education.

Mr. Bindas: (01:57:39)
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 the 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.

Mr. Bindas: (01:58:09)
They need not hire cert state certified teachers, which Maine public schools must do. They can be run by religious organizations and orders. 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 John G. Roberts, Jr.: (01:58:46)
Thank you, counsel. The case is submitted. We’ll hear an argument next in case 201009 Shinn versus Ramirez. Mr. Royston?

Mr. Royston: (02:01:05)
Mr. Chief Justice, and may it please the court. The issue presented in this case is fundamentally a question of statutory interpretation. When Congress enacted 2254-E2, as part of EDPA, it created a high bar for federal evidentiary hearings on habeas claims involving state convictions. It codified the first part of the Keeney test in the opening part of E2, by echoing the words, failure to develop, from Keeney. And this court in Williams and Holland has already held that attorney negligence counts as failure to develop under E2 based on agency principles. If a failure to develop has occurred, Congress did not merely repeat Keeney and Coleman’s cause and prejudice tests for excusing it, but rather supplanted it by specifying in subsections A and B of E2, the cause and prejudice required. Congress thus spoke clearly. And the court’s role is to apply the statutory language.

Mr. Royston: (02:02:02)
That no fact finder could have found the prisoner guilty is not enough. The prisoner must also satisfy E2-A, by showing either a new rule of constitutional law or that the factual predicate could not have been previously discovered through the exercise of due diligence. This is an intentionally high bar. Respondents rely on Martinez to create an additional exception to E2, beyond A and B. That proposition fails. Martinez was addressing cause for the cause and prejudice tests for excusing a procedural default. Congress did not codify the procedural default or the excuses for overcoming it in EDPA. In contrast, Congress did affirmatively codify the circumstances under which cause and prejudices establish to permit an evidentiary hearing, following a failure to develop under E2. Martinez’s judge made rule cannot rewrite Congress’s statutory questions standard. I invite questions from the court.

Justice Gorsuch: (02:03:03)
Counsel, it seems rather odd that we would excuse default, under Martinez, but not allow the prisoner to make his underlying claim or develop his evidentiary basis for his underlying claim.

Mr. Royston: (02:03:34)
Well, your honor, Martinez did not consider this question. Martinez-

Justice Gorsuch: (02:03:37)
I understand that, but it seems pretty worthless to say, well, we’ll excuse the procedural default. To what end?

Mr. Royston: (02:03:49)
In some cases, there may already be evidence in the state court record.

Justice Gorsuch: (02:03:52)
Okay, let’s take this case to what end if you’re not allowed to develop the underlying claim?

Mr. Royston: (02:03:58)
Well, in this case, our position is that the district court should not have gone into Martinez’s hearing, in Jones, without looking whether there was enough state record evidence to establish ineffective assistance of trial counsel in the first place. It’s a fruitless exercise, but that doesn’t mean that Martinez can overcome the statutory language. The court just simply cut it off at the beginning and the Ramirez’s case, the evidence just wasn’t there either way. And so the short answer is Martinez can be accommodated. The district court just shouldn’t go down the path of having a Martinez hearing if there’s not going to be state court evidence to establish the ultimate claim.

Chief Justice John G. Roberts, Jr.: (02:04:38)
But it’s a basic syllogism. The idea is if you do get the right to raise the claim for the first time, because your counsel was incompetent before, surely you have the right to get the evidence that’s necessary to support your claim. I mean, the whole reason, some states say you shouldn’t raise your incompetence claim until after the direct proceedings, is that it’s much more efficient and natural to have an evidentiary hearing at that time, rather when you’re halfway up the chain between the trial court and the court of appeals.

Mr. Royston: (02:05:11)
I think Judge Collins in his dissent pointed out the flaw in that logic, which is there’s asymmetric intervention here. Congress did specify in the E2 when you can have a hearing. So the problem is the major premise of that syllogism is faulty.

Chief Justice John G. Roberts, Jr.: (02:05:25)
Well, specify that before our decision in Martinez. Right?

Mr. Royston: (02:05:29)
Could you, sorry… Could you-

Chief Justice John G. Roberts, Jr.: (02:05:31)
I’m sorry. They specified that before our decision in Martinez?

Mr. Royston: (02:05:34)
I’m talking about Judge Collins’ dissent from denial on [Bangan 02:05:38] in this case.

Chief Justice John G. Roberts, Jr.: (02:05:38)
Yeah. But I thought the point you were making is that he had an explanation for why the language in E2 trumped the theory that Martinez gave you the hearing and so then implicitly gave you the right to present evidence.

Mr. Royston: (02:05:54)
I think it’s incorrect to say that Martinez implicitly gave you the right to present evidence. That’s just not in Martinez. The court was presented with a constitutional question, when a state breaks out in effect-

Chief Justice John G. Roberts, Jr.: (02:06:07)
You’re certainly right about that. It’s not in Martinez. I mean, if it were, we wouldn’t be here. But in other words, if your claim of incompetence has to do with some factual evidence, by saying to the prisoners, look, don’t raise it on direct appeal, raise it collaterally. You lose the ability to press what is your central claim of incompetence?

Mr. Royston: (02:06:34)
Correct. But I think Congress envisioned that in subsection I, where Congress expressly said incompetence of post-conviction council is not a basis for habeas relief.

Chief Justice John G. Roberts, Jr.: (02:06:43)
But was that also before Martinez?

Mr. Royston: (02:06:47)
Yes, that’s in the EDPA.

Chief Justice John G. Roberts, Jr.: (02:06:48)
Then I don’t think you can say Congress envisioned the problem. That only came up when we decided Martinez.

Mr. Royston: (02:06:53)
Well, but I’m saying even if Martinez had answered the question presented, which is is there a constitutional right to effective post-conviction counsel when that’s the first chance to raise ineffectiveness of trial counsel? That would not be a claim that could be brought in federal habeas and district court, because Congress has stripped the district courts of jurisdiction, just as district courts don’t grant habeas relief on fourth amendment grounds. That would be a claim that-

Chief Justice John G. Roberts, Jr.: (02:07:14)
Keep going, sorry.

Mr. Royston: (02:07:15)
… Have to be brought in state court because of subsection I. That’s my point.

Justice Kavanaugh: (02:07:18)
I guess, picking up on Justice Thomas’s and the Chief Justice’s question though, doesn’t it really gut Martinez in a huge number of cases? And then what’s the point of Martinez? The court obviously carefully crafted an opinion to give you the right to raise an effective assistance claim to make sure it’s considered at least once. And this would really gut that in a lot of cases. So I need a good explanation for how to do that or why to do that given what Martinez says.

Mr. Royston: (02:07:53)
I think to the extent that Martinez is reconciled with E2, then at the end of the day, Martinez should be overruled. I mean, Martinez offered a equitable exception to excusing a procedural default.

Justice Kavanaugh: (02:08:04)
Assuming we don’t do at what what’s your next answer?

Mr. Royston: (02:08:07)
Then Martinez can be kept to what was expressly in very narrow question, which is when is there cause to excuse a procedure?

Justice Kavanaugh: (02:08:14)
But it was a narrow question on an important issue. And you have to assume that the court majority was unaware somehow of how this would play out and was articulating this important right about when you could raise something, but didn’t realize, oh, actually you’re never really going to be able to pursue it because of this other provision. It’s hard to envision the court thinking that that would make any sense.

Mr. Royston: (02:08:50)
Congress’s purpose in EDPA and in the bar and evidentiary hearings in particular specifically imagined the worst case scenario, which is a prisoner is actually innocent and that’s E2- B, but that wasn’t enough to permit a hearing. It said you still have to meet A, and A says either it has to be a new rule of constitutional law or that the evidence could not have been developed even with diligence. So I think the fundamental question is, what was Congress’s intent and here Congress spoke clearly, I think in E2-B that innocence isn’t enough here.

Justice Kagan: (02:09:24)
E2 has a fault standard in it. It says if the applicant has failed to develop the factual basis of a claim. And I thought in these various cases it’s the usual rule that the attorney’s fault gets attributed to the client, but that’s not always the rule. And what Martinez essentially is saying is, it’s not the rule when that happens. It’s not the rule when the state has directed a person into a post-conviction proceeding, that at that point, we’re going to ascribe the failure to the state in the same way that we do when there’s a constitutional claim of ineffective assistance. We say, it’s not your fault. We’re going to ascribe the error to the state. So why isn’t Martinez just essentially piggybacking on the Coleman rationale that this is not your error and so E2 doesn’t apply?

Mr. Royston: (02:10:21)
So I don’t think Martinez can be understood as reinterpreting general agency principles. And if this court’s decision in Davila, which is from 2017, where it said ineffective assistance on direct appeal, you cannot use the Martinez exception. So I don’t think you can understand Martinez as a general agency case. It didn’t purport to be that. It cannot logically be thought of as that, because there’s no limiting principle. I don’t understand how the court can say in Davila the post-conviction counsel is your agent for raising an ineffective assistance of direct appellate counsel, but not your agent for raising ineffective assistance of trial counsel. Why are they your agent in one, but not the other? That’s not what Martinez did. Martinez said we’re going to create a narrow, equitable exception to the procedural default rule. And when you have a judge made exception to a judge made rule compared to a statute that has its own exception, that is very high, the statute ultimately has to trump. And that’s why this is ultimately a case of statutory interpretation.

Justice Kagan: (02:11:19)
Counsel. The problem is that the statute doesn’t define what at fault means. Just says long as you fail to develop. So by definition, what constitutes fault is defined by us, correct?

Mr. Royston: (02:11:36)
Correct. And in-

Justice Kagan: (02:11:36)
So stop. One second, please. Okay. So in Williams we said, the question under EDPA is whether the respondents were at fault for not developing the facts of their claim. So that’s the EDPA question. Okay. We have said in Maples that if your attorney abandons you, you are not at fault. And in Martinez, as we said-

Justice Sotomayor: (02:12:02)
And in Martinez, we said, if your attorney errors in exactly the situation here, by failing to develop the record on appeal which was the only opportunity you had to do it, you are not at fault. So, I don’t understand why you argue that the statue, because it doesn’t say anything about what at fault means, why the statue forces us to conclude that the respondents are not at fault.

Mr. Royston: (02:12:34)
Well, because the first part of E2 is echoing Keeney. Is there a procedural default in the first place? Martinez is the second step. Is their cause to excuse that? And then the third step prejudice. If the correct way to read Martinez was that you’re not at fault in the first place, there should not be a prejudice element to excuse the default. So, obviously, what Martinez is focused on is, is their cause to excuse a default that has occurred? And Williams and Holland both say the attorney error is imputed.

Justice Sotomayor: (02:13:03)
How different is that from abandonment?

Mr. Royston: (02:13:07)
It’s different because Maples was talking about general agency principles. It said under general first principles of agency law, if your agent abandons you by taking a job where they are a law clerk or they work for an international tribunal that they cannot even represent you, then they have abandoned you under general agency principles. That’s not what’s happened here. The trial counsel may have been incompetent and ineffective, but he did not abandon, and she did not abandon her client under agency principles. And that’s the distinction. That’s the fundamental distinction. I think what’s important to remember-

Justice Sotomayor: (02:13:37)
Thank you, counsel.

Mr. Royston: (02:13:37)
… is even in Coleman, the attorney, I think he filed his notice of appeal of the post-conviction like 33 days late, so I mean, how could the prisoner, if you just think of it from a… How is he at fault for that? Or in Keeney, the post-conviction council failed to bring in evidence that the interpreter didn’t properly interpret what nolo contendere meant. In all those cases, it’s hard to think of the prisoner as being at fault in the sense that we say what he did was wrong, but the point is under agency principles, the council is the agent and therefore the negligence of the agent is imputed to the prisoner. And that’s what this court-

Justice Kagan: (02:14:12)
Well, except that I think that Martinez pretty explicitly rejected that, and I’m just going to quote from a bunch of different places. But the court says it was the state’s deliberate choice to move trial in effective in this claims outside the direct appeal process, and it was that choice that significantly diminished the prisoner’s ability to assert trial and effectiveness claims. And so, too, the court says it was the state’s procedural framework that made ineffectiveness qualify as cause for a procedural default. I mean, all that language is clearly saying that the blame here for post-conviction ineffectiveness is ascribed to the state. Now, I mean, this is an ascription and we can argue whether it really is the state’s fault or we can argue in all these contexts about, “Really?” But essentially, this is the theory of Martinez, that the state has set up a system in which it’s proper to ascribe the fault to the state, not to the defendant.

Mr. Royston: (02:15:16)
I think Martinez is not the last word. In Davila, we’re dealing with… Imagine that the state, Arizona said you raise an effectiveness of trial counsel on direct appeal and your direct appeal attorney was negligent, they didn’t do a good job, you go then to state post-conviction, and that post-conviction attorney doesn’t even bother to raise that. You’re now procedurally defaulted. And under Davila, I don’t think you can go to federal habeas. So, I don’t think the Martinez discussion about whether the state chose to put it in post-conviction versus direct appeal answers the question of in federal habeas, can you have an evidentiary hearing under E2? I think that’s a question Congress answered by using the first part of the Keeney test. And then Holland and Williams, this court has already said attorney error is attributable to the prisoner. So, whether you have to raise ineffective assistance of trial counsel and direct appeal or on post-conviction, if the post-conviction attorney is negligent, that’s going to be attributed to the prisoner for purposes of federal habeas.

Jsutice Thomas: (02:16:16)
If the court in Martinez had accepted the prisoner’s argument, that there is a constitutional right, sixth amendment right to the effective assistance of counsel in the first post- conviction proceeding when the state says you can’t raise an effective assistance of counsel until the first post-conviction proceeding, then it would follow, would it not, that the fault of the ineffective attorney would not be attributed to the prisoner?

Mr. Royston: (02:16:53)
I think what would follow is that you would have potentially a claim for ineffective assistance of post-conviction counsel. I think it would be a different question. But then I think I would prevent you from raising that in federal habeas. You would probably have to raise that through direct appeal of the state post-conviction to this court or through a subsequent [crosstalk 02:17:09].

Jsutice Thomas: (02:17:09)
But the court did not accept that constitutional argument made by the petitioner-

Mr. Royston: (02:17:14)
Correct, Your Honor.

Jsutice Thomas: (02:17:15)
… which would potentially change the meaning of fault that was adopted by the court in Williams, where it said that the failure to raise language in 2254 E2 imposes a negligence standard, but the court didn’t do that.

Mr. Royston: (02:17:43)
Correct, Your Honor.

Jsutice Thomas: (02:17:44)
So, what do you deduce from that?

Mr. Royston: (02:17:47)
I think what I deduce is that Martinez was addressing a very narrow question, which is after there has been a procedural default, can the ineffectiveness of post-conviction counsel provide cause in this one narrow circumstance? The answer is yes. And then you have to move on to the second step which is prejudice. But it’s a three step… Is there a procedural default? Yes. Okay. Do we have cause and prejudice to excuse it? Martinez expressly said we are very narrowly saying it’s an equitable matter. The ineffectiveness of post-conviction also can provide cause to excuse an existing procedural [crosstalk 02:18:20].

Justice Kagan: (02:18:20)
But just to go back to where the Chief Justice started, over and over in Martinez, when the court is saying why this is important, the court talks about the role of the attorney in developing evidence, I mean, three, four, or five times. Martinez was not under any misperception that this was not an evidentiary question, essentially. As the chief justice said, this is why states do it this way, put it here, because everybody knows that in the vast majority of cases it’s an evidentiary question, and Martinez talked about it in exactly those terms. This is what the council is supposed to be doing, is to develop evidence.

Mr. Royston: (02:19:02)
That’s correct, Your Honor. I mean, these are important questions and they’re often going to require the development of evidence, but Congress has answered the question in E2. And from Congress’ point of view, even innocence is not enough because that only satisfies B. You still have to meet A. This is a situation unlike, for example, the one year statute of limitations for a claim of actual innocence where this court, I think in McGuigan, said that gets around it. This is not a question that was not on Congress’ mind. I mean, Congress was very specific.

Justice Kagan: (02:19:30)
But Congress has only answered the question if we decide that the fault standard is met, and that’s the entire question here is, is the fault standard met? It wouldn’t be met if this were a constitutional ineffectiveness claim, as Justice Alito pointed out. So, is it met here? And as I said, I do think that Martinez, although it didn’t say that there was a constitutional right, that the whole theory of Martinez is about, “You know what? This is the state’s responsibility to take ownership of this and to make sure it doesn’t go south.”

Mr. Royston: (02:20:08)
I think to say the fault standard would be met if this were itself a constitutional claim is not necessarily correct because that’s for the claim. The Martinez question is kind of a predicate question. Can you have an evidentiary hearing on the claim in the first place? So, if it was made a constitutional right, then maybe it would support a claim, except for the fact that subsection I says you can’t do it. But put aside I, it might be a claim. That doesn’t mean it’s not a procedural default. And I don’t think this court in Martinez was purporting to set or general agency principles, because if that were true in Davila, there’s no way to distinguish that position from Davila where you said, “Well, the post-conviction council was negligent in raising ineffectiveness of direct appeal counsel.” How could the post-conviction counsel be an agent for one specific purpose… or I should say not an agent for one specific purpose, which is to factually develop and raise the issue of ineffectiveness of trial counsel, but an agent for every other claim that could be raised on habeas?

Justice Kavanaugh: (02:21:12)
You have a forceful argument on the staff statutory language, and I think this case is close for that reason, but going back to Martinez, you went to Davila, but Martinez did contemplate, it seems, that ineffective assistance of trial counsel, that claim and that claim alone, I think, could be raised in federal habeas even if otherwise defaulted because it wouldn’t be attributed to the client. And then the question becomes, well, did they really contemplate that it could be raised, but not actually pursued? Which seems like a very odd way to attribute what the court did in Martinez. That’s what I’m trying to figure out. There’s obvious tension here, and that’s what I’m trying to figure out.

Mr. Royston: (02:22:03)
Right. And again, our position is to the extent that one has to give, Martinez should give because it’s judge made. But I think that the fundamental purpose of EDPA.

Justice Kavanaugh: (02:22:11)
Sorry to interrupt, but what’s wrong, I think this is really heart of it for me, is what’s wrong with saying that Martinez said that you’re not at fault in this one specific area? In other words, the fault’s not going to be attributed to the client in this one very particular specific area, and then that applies to the fail to develop language here.

Mr. Royston: (02:22:36)
This is certainly not my position, but if that’s what Martinez meant, then I don’t understand why you have to show prejudice. Because if there is no default in the first place, then there’s no reason to get to cause and prejudice. You would just move right on to the ineffective assistance of trial claim. But I think Pin Holster to me is really a case that’s critical to understanding this, and in Pin Holster, this court spoke about Williams and it basically said Congress has set up two independent bars to really restrict habeas. I think the court said this was a watershed change in habeas. And it said, D1, which if it reached the merits, the court has to defer to the state court, and if E2, a really high bar to evidentiary hearings, Congress was very clear.

Mr. Royston: (02:23:15)
I mean, I think the answer consistent with EDPA is if somebody has a good claim, then they need to go to state court and file a second or successive habeas petition. Most states… or post-conviction petition. Most states allow actual innocence as a ground. In Arizona, we allow that. So, you could go to court, you could develop your record in state court. And I think that’s the answer given the statutory requirements of EDPA, which are very strict in this context.

Chief Justice: (02:23:40)
Thank you, Counsel. Justice Thomas? Justice Breyer [inaudible 02:23:44].

Justice Sotomayor: (02:23:46)
I have one question, Counsel. You devote just one paragraph to Ramirez’s waiver claim. You admit that you did not raise this statutory argument that you’re making today until you’re petitioned for a rehearing. Normally, that’s waiver. I don’t know how you can claim that you didn’t know that this was at issue when Mr. Ramirez in his appellate brief… I’m quoting pages 46 to 48, he specifically says, “The equitable remedy developed in Martinez would be pointless without an opportunity for federal fact development. Federal court is Ramirez’s opportunity to present the evidence that should have been presented years ago but was not due to prior counsel’s failure.” That’s a direct request to say, “I was entitled to my hearing,” and yet you don’t raise this argument. Why shouldn’t we dig?

Mr. Royston: (02:24:48)
You should not dig because in Ramirez, it was even more egregious because even taking all the evidence from the Martinez proffer, the ninth circuit said, Yeah, we’re going to have yet another hearing on the merits, on the claim.” So, Martinez… or pardon me, Ramirez is directly contrary to the language of E2, and that’s [crosstalk 02:25:06].

Justice Sotomayor: (02:25:06)
I’m sorry, Counsel, that just gets to the point. You didn’t raise this argument until your petition for rehearing.

Mr. Royston: (02:25:13)
Our position up to that point was even if you look at his evidence, it’s not enough to establish [crosstalk 02:25:18].

Justice Sotomayor: (02:25:17)
That was your entire argument. It wasn’t that he wasn’t entitled to rely on that evidence.

Mr. Royston: (02:25:24)
I wouldn’t say it was our entire argument, but that was our position. When the ninth circuit said, “You’ve met Martinez and now we’re going to have a new hearing on the claim, go back and do that,” and we said, “No, that violates E2. That’s what preserved. This was an alternative basis for affirmance. I don’t think we had to raise it pre-petition for rehearing to preserve it.

Justice Sotomayor: (02:25:40)
Thank you, counsel.

Mr. Royston: (02:25:41)
Thank you,

Chief Justice: (02:25:41)
Justice Kagan, anything further? Justice Gorsuch?

Justice Kavanaugh: (02:25:45)
Just one question. I’m just going to ask a question that respondent’s brief asks and have you answer it before they stand up. They say on page two, “If you’re not fault for failing to raise a claim, how can you be at fault for failing to develop that claim?” So, just give you a chance to answer their question before they stand up.

Mr. Royston: (02:26:03)
My answer is you are at fault. Martinez said you have cause to excuse it. You have to map that onto E2. You’ve now satisfy the first part of E2, so now you have to satisfy A and B. Unfortunately for them, they cannot satisfy A and B. They need to go to state court.

Chief Justice: (02:26:18)
Justice Barrett? Thank you, Counsel. Mr. [Lope 02:26:29]?

Mr. Lope: (02:26:30)
Mr. Chief Justice, and may I please the court, the limits imposed by section 2254 E2 only apply where, in the words of the statute, “the applicant failed to develop the factual basis of a claim.” And the statute doesn’t define applicant fail to develop, but in Michael Williams, this court held that the phrase, “requires a finding a fault.” So, in arguing that Mr. Jones and Mr. Ramirez should be held at fault here, the state relies on Michael William’s recitation of the general rule that an attorney’s acts are generally to be attributable to a client. But this court has long recognized that attribution rule is not categorical in nature. Indeed, the state agrees that the failures of counsel are not to be attributed to the applicant when the attorney’s ineffectiveness is at the Strickland level and when it occurs either at a criminal trial or on the direct criminal appeal.

Mr. Lope: (02:27:21)
This court in Coleman left open the question of the fault of the attribution, where like here, the state labels the first review instead of an appeal, instead calls it post-conviction review. This court nine years ago squarely addressed that open question, and this court examined the very same Arizona system at issue here, where the only review provided for ineffective counsel claims is on post-conviction review. And where that post-conviction review was not collateral or civil, but is under Arizona rule, part of the original criminal action, in that specific context, this court held that the labels used by the state do not matter and that the fault, the attribution, is not to the claimant for the counsel’s failures, just like in a direct appeal situation.

Mr. Lope: (02:28:10)
This court held that the Arizona conviction review for such ineffective trial counsel claims is in many ways the equivalent of a direct appeal, and that in both contexts, the failures of counsel, when it means to the stricken levels, are not to be attributed to the claimant. That same fault calculus applies under E2 and fully supports holding that E2’s restrictions do not apply to Mr. Jones or Mr. Ramirez. I welcome your questions.

Justice Gorsuch: (02:28:39)
Counsel, if we… Well, first of all, I thought in Martinez we said that that was strictly procedural default.

Mr. Lope: (02:28:49)
It was addressing the situation of procedural default and cause and prejudice, correct, Your Honor,

Justice Gorsuch: (02:28:53)
Yes, and it emphasized that it was a, in effect, a first appeal.

Mr. Lope: (02:29:00)
Correct. It was saying that it is the first opportunity of review just like the situation of an [crosstalk 02:29:05].

Justice Gorsuch: (02:29:05)
So, I thought it [inaudible 02:29:06] the suggestion was it was sui generis, but I’ll let that go. If it’s going to be the practice to use Martinez to eventually require a flow evidentiary hearing, why don’t we just apply EDPA, 2254 E2, upfront to the Martinez hearing?

Mr. Lope: (02:29:34)
Your Honor, the first question or E2 is whether you’re at fault, and so the question is, are you going to be at fault under Martinez? The first stage is for cause and prejudice. You’ve defaulted your claim. You didn’t raise it in state court. You need an inquiry as to whether you’re to be held at fault for failing to raise that claim. So, counsel here suggested there’s some separation between that because cause was found, that there was no fault, but here, the claim wasn’t raised and under Martinez-

Justice Gorsuch: (02:30:09)
Don’t you think it’s a bit odd, though, that you can use that to basically eviscerate the restrictions of EDPA?

Mr. Lope: (02:30:18)
It doesn’t eviscerate the restrictions of EDPA. What it’s doing is recognizing that you’re not at fault for not raising a claim, you’re not going to be held, ordinarily, just as a matter of logic and precedent, aren’t going to be held at fault for failing to develop that same claim. Indeed, Congress recognized that. This court has long recognized it. In Keeney this court said that those two inquiries of whether you’re at fault for not raising it and not developing it, that there’s little to be said for applying different standards, and in Michael Williams at page 444, this court said a ruling on one will be sufficient for the other. And when Congress adopted the Keeney standard, it understood that under Keeney there was no Delta, as a matter of logic and force between those two inquiries, of whether at fault for failing to raise the claim in failing to develop the claim.

Mr. Lope: (02:31:09)
And that’s why in Martinez and Trevino, this court clearly anticipated that these important substantial ineffective trial counsel claims would be developed once cause was found and that the person was found not to be at fault for failing to raise it. And the rationale that this court applied in Martinez for why you weren’t at fault for not bringing the claim in the first instance applies squarely to E2, as well. So, Martinez says the post-conviction review, it provided in many ways the equivalent of a prisoner’s direct appeal. And all agree that if these errors occurred in a state where you could raise ineffectiveness of trial counsel on appeal, everyone would agree you would not be attributing fault here to Mr. Jones and Mr. Ramirez.

Mr. Lope: (02:31:59)
So, the fact that in Arizona the way they’ve structured their system, the fact that the post-conviction review is in every meaningful way serving the exact same role as the appeal and functionally this same, can’t be overlooked. So, in both instances, in a direct appeal and here in Arizona, the way they’ve constructed post-conviction review, this is your first and only right of review of an ineffective trial counsel claim.

Jsutice Thomas: (02:32:23)
Well, this is really a tough case. You have a strong argument that accepting the state’s interpret of 2254 E and Martinez would… of 2254 E would drastically reduce what a lot of the lower courts have thought Martinez means, and I certainly understand why the courts of appeals have interpreted Martinez the way they did. But the fact remains that we have to follow the federal habeas statute. We have to follow EDPA unless it’s unconstitutional. And 2254 E was interpreted in Michael Williams, the court interpreted what it means for there to be a failure to develop the facts of a claim, and it said that occurs when there is lack of diligence or some greater fault attributable to the prisoner or to the prisoner’s counsel. That’s where things stood at the time when we decided Martinez.

Jsutice Thomas: (02:33:31)
Now, it’s nice to attribute omniscience to the court, the fact of the matter is, that this whole 2254 E issue was not briefed by anybody in Martinez, and the court didn’t address the it. So, I think what you have to explain is how Martinez, which didn’t purport to interpret 2254 E, and certainly didn’t purport to overrule Michael Williams, which is the case you have to rely on in support of your interpretation of failure to raise, how Martinez could be interpreted now to have changed what that statutory phrase means.

Mr. Lope: (02:34:18)
Yeah, we’re not arguing that Martinez changed the statutory phrase, and we’re not arguing that Michael Williams needs to be overruled. And we’re not disagreeing with the general rule that ordinary counsel’s failures will be attributed to the client. But it’s always been understood, and there’s no disagreement that in some instances, limited instances, the attorney’s failures are not attributed to the client. Everyone agrees that if there are these same errors that occurred in a state on a direct appeal situation, then these same failures at a stricken level would not be attributed to the client. So, Martinez-

Jsutice Thomas: (02:34:51)
That’s true, but that’s because there would be a sixth amendment violation there.

Mr. Lope: (02:34:55)
And Martinez-

Jsutice Thomas: (02:34:55)
… and that’s exactly what the court did not adopt in Michael Williams.

Mr. Lope: (02:35:01)
Didn’t address. Didn’t address. It didn’t reject it. It just said, “We don’t need to get there.”

Jsutice Thomas: (02:35:04)
Well, it didn’t adopt it, so is that what you want us to do, you want us to extend the application of the sixth amendment?

Mr. Lope: (02:35:11)
No, Your Honor. Just like Martinez, you don’t need to reach the issue. You just need to need to look at, that all the attributes for fault, that animate for not attributing fault in the situation in Coleman and for a direct appeal situation equally apply here. So, Martinez, there’s two major elements you need to recognize. One is the equivalency, that it’s just like a direct appeal in this circumstance because you have the first right of appeal, it’s a part of the criminal action. It’s not a separate civil action. It’s not a collateral attack. This is just like an appeal. It walks like a duck, quacks like a duck. It’s not discretionary. It is a mandatory review just like an appeal. That just because the fact that Arizona has slapped a different label on it is not a reason to have a different fault attribution to the client if this had arose in a different state where these very same errors occurred on a direct appeal.

Mr. Lope: (02:36:06)
And this court’s case is involving post-conviction review and habeas review saying they’re materially different from appeal. They have no application here. Look at Pennsylvania versus Finley. They say, “Well, post-conviction review is different because it’s civil, it’s discretionary,” but under the Arizona system, it is, by rule… Look at rule 32.3 of the Arizona criminal rules, it says it’s part of the criminal action. It is not a separate action. And it is not discretionary. It’s mandatory. This court in Douglas versus California and Coleman said you should treat post-conviction review differently because you’ve already had your one bite at the apple. This is an additional layer of review. You’ve already had your appeal with constitutionally effective counsel. That’s not true here. Arizona has shunted this into post-conviction review, circumventing the right to appeal. So, just like in Martinez, you don’t need to reach the constitution issue, but you can see because it’s the substantial equivalent, you should be treating them the same in Congress would’ve expected that.

Mr. Lope: (02:37:03)
And the second major element of Martinez as one that Justice Kagan mentioned, is one that under ordinary understanding at the time of Michael Williams and of time of E2, is that when there’s an external force that impairs or obstructs the ability of the applicant to assert and to vindicate a constitutional right, you don’t treat that as being attributed to the applicant. And that’s very important that Martinez addressed that very same subject in this very context and said that the applicant in this situation is to be deemed obstructed and impeded by the acts of the state. And the court explained why at page 13 of the decision. It said, “By deliberately choosing to move the trial ineffective counsel claims outside the direct appeal process, where counsel is constitutionally guaranteed, the state has significantly diminished the prisoner’s ability to file and to, of course, vindicate such ineffective trial counsel claims.” So, just nine years ago, a 7-2 majority here said what the state has done in constructing the system as it has impedes, in the words of the court, and obstructs the vindication of these bedrock right to effective trial counsel.

Chief Justice: (02:38:12)
Mr. Lope, do you have any general authority for what you do when you have a situation like this where the plain language of the statute seems to require one result, to the result your friend argues for, and the plainly logical meaning of a subsequent precedent would seem to require the result that you argue for? Do you have a case that says how we’re supposed to reconcile those two things?

Mr. Lope: (02:38:41)
Well, Your Honor, there isn’t a conflict between the texts. The language failed to develop was taken from Keeney and that-

Chief Justice: (02:38:50)
Once again, asking you if you have a case that talks about my hypothetical, which suggests that there is a conflict between the statute and between the logical reading of the precedent.

Mr. Lope: (02:39:06)
I don’t have a case that’s going to satisfy you on that, Your Honor, but you have to look at the statute in light of what Congress understood when they enacted it. And certainly at the time they enacted it, they understood every time a court had found cause, there was always development of the fact. So, Congress would’ve understood that whatever failed to develop and how it was applied, that if you’re going to find cause, that you weren’t at fault for failing to raise the claim. You logically, and as a matter of logic, and under Keeney case law, which Congress was aware of, you likewise would not be considered at fault for failing to develop the very same claim. So, Martinez, in finding that there was cause there and the person was at fault, Congress would’ve anticipated that if you weren’t going to be held at fault for failing to bring the claim, you weren’t going to be held at fault for failing to develop the claim. So, there really isn’t-

Chief Justice: (02:39:51)
That’s a lot of prescience to ascribe to Congress. They would’ve anticipated the fact pattern that developed in Martinez and that’s how you should therefore read the statute that they drafted however many years [inaudible 02:40:04].

Mr. Lope: (02:40:04)
No, Your Honor. I mean, Coleman proceeded E2’s enactment in EDPA, and at that time, Coleman left open the question of this particular context of where, instead of calling an appeal, you call it a post-conviction review, and that’s your first opportunity to raise the constitutional claim. Coleman said, “We don’t need to address that here in Coleman. It’s not the facts of this case.” And then this court then squarely dealt with that open issue in Martinez and held you’re not to be held at fault, and it’s going to be treated just like where the attorney’s ineffectiveness in raising the ineffective trial counsel claim occurred on a direct appeal.

Mr. Lope: (02:40:43)
So, Congress [crosstalk 02:40:44] this was an open issue and would’ve expected the court to address that open issue, applying the general principles at the time, and one of those principles are, if there’s an external force that obstructs or impedes you, you’re not going to be attributing fault to the claimant. And here we have this court expressly finding that the way Arizona has set up a system, it’s allowed to set up however it wants, but the way it does significantly diminishes the ability to vindicate this important constitutional right.

Jsutice Thomas: (02:41:16)
What issue specifically do you think the court left open in Coleman? Was it the question whether the sixth amendment would apply in the first post-conviction proceeding? Or was it the question whether there could be a non-constitutional basis for finding that the fault of the attorney is not attributable to the client?

Mr. Lope: (02:41:39)
It’s more the former, Your Honor, but it’s in the context of cause and prejudice as to whether you’re going to attribute fault to the applicant in that particular context for failing to raise the claim. And they left that open and it was squarely then addressed by this court in Martinez. I’m not saying that Martinez controls the statute, but the rationale behind Martinez applies with full force here and saying that failed to develop likewise shouldn’t be attributing fault to-

Justice Kavanaugh: (02:42:07)
To pick up on the Chief Justice’s question and Justice Alito’s, though, I think the other side says, “Well, the way you can square Martinez with the statute is to just read Martinez, to do what it did and only what it did,” and subsequent cases like Davila support that, they say. And you can then hold the statute to say what it means and means what it says in the ordinary meaning, failure to develop, and Martinez still stands for what it stands for without getting into the logical implications of Martinez. I think that’s a characterization on the other side and we can’t ignore the statute. So, what’s your best response to that?

Mr. Lope: (02:42:48)
I mean, our best response is we’re not ignoring the statute. We agree that you need to construe the statute here and that fail to develop here needs to be read in this particular context, a context that this court said is substantially equivalent to a direct appeal where you would not be attributing fault. It’s a situation where this court says that because of the acts and the way that Arizona’s constructed its system, it’s significantly diminishing the ability to vindicate that right. You’re not going to attribute the fault to the applicant for failing to raise the claim. And then, as a matter of logic and precedent, you would apply that very same rationale at the E2 in deciding whether you were to be held at fault for failing to develop that claim that your counsel did not raise. So, we’re not asking to avoid the statute or for equitable exception to the statute, it has to be read in light of its particular context. And we’re fortunate enough that this court applying like principles has already looked at the very context in Arizona and said, “Look, it’s really just like a direct appeal. There’s no reason for treating fault differently in this situation than it is a direct appeal.” And it’s looked at the situation and said, “The way Arizona is constructed its system, there’s an external force here that obstructs and impedes the vindication of this right that significantly diminishes the ability of the applicant, and we’re not going to treat him as a fault.” So, if all that rationale is correct as to why they shouldn’t be at held at fault for failing to bring the claim, and our argument is, yes, and for the very same reasons you’re not at fault for failing to develop. And you don’t get to the other aspects of E2 because there’s that threshold standard. Did you fail to develop it? Which Michael William says requires a finding a fault.

Justice Kavanaugh: (02:44:28)
What about, to pick up on Justice Thomas’s question that this would inevitably lead to extensive delays and EDPA was enacted to try to eliminate some of those delays in some of the litigation, particularly capital litigation, you want to respond to that?

Mr. Lope: (02:44:46)
No, it doesn’t add any additional delays. I mean, again, if these very same attorney errors had happened on a direct appeal, and there was no additional state forum to ineffective trial counsel claims, you’d be in federal court just like we are. We’re not asking for anything beyond what would be-

Mr. Lope: (02:45:03)
… be in Federal court, just like we are. We’re not asking for anything beyond what would be applied in the ordinary context, where these very same kind of errors happen on a direct appeal. So we’re not adding to anything, we’re just trying to get these same equivalence of what would happen in a state where you can raise these things on a direct appeal. And indeed, and to avoid the fortuity that would exist under the Arizona argument here that, well, if this arose in a state where you can raise an appeal, then you get to proceed in federal court. But if it arose in Arizona where they’ve labeled the exact same thing, but they’ve just labeled it post-conviction review. Now, you don’t have a forum that’ll ever meaningfully hear your in effective trial counsel claims.

Mr. Lope: (02:45:44)
There’s no reason to ascribe that intent to Congress here. The language does not abide by that extreme reading. That just because of how the state here is labeled, that first writer review as opposed conviction review, as opposed to a labeling and appeal, that substantial claims regarding ineffective trial counsel, one of the most meaningful rights, a bedrock right this court said to having a fair justice system will never be heard because these claims like as you said in Martinez and said in Trevino, inherently require factual development.

Mr. Lope: (02:46:23)
There’s a second material misreading the state has of E2, is that they’re saying that it bars all consideration of evidence beyond the state court record. However, it only bars having an evidentiary hearing on the claim. So when you have evidence that’s already been accepted by a federal court on the cause and prejudice stage, that is not covered by the plain language of E2. That is not an evidentiary hearing of the claim. That’s just considering evidence that you already have in your hand. And Arizona’s contrary argument would mean that a federal court has in its hand strong on evidence like you have for Mr. Jones here, that he did not commit the murder that he was charged with.

Mr. Lope: (02:47:08)
And the federal court has it in his hands. And the district court here ordered his release, given the strength of that evidence or his retrial. And Arizona’s argument is that the federal court should just turn a blind eye to that evidence. A construction of the statute that would require that as the Amicus brief from the former DOJ. And bipartisan prosecutor says that would really taint the federal judicial system for the federal court to have this evidence that he didn’t commit the crime in his hand, and to do nothing is really going to make them complicit in an improper affecting of the death penalty here.

Mr. Todd: (02:47:42)

Justice Kavanaugh: (02:47:43)
One of their response… Sorry, go ahead.

Mr. Todd: (02:47:46)
Counsel, I guess given the predictions of the dissent in Martinez, I was surprised that one of the statistics I read is that there’s only two cases a year that present the Martinez hearing, where a court has found that a prisoner is eligible for a Martinez hearing.

Mr. Lope: (02:48:08)
I think the Amicus briefs went through like all the times Martinez has been raised in the primary states where it’s at issue. And it’s found in the nine years, there were several, I think, two to three dozen cases over nine years. I don’t think it was two or three. I think one or two cases that ultimately then people have vindicated and got release orders, et cetera. But the number of hearings we’re talking about over a nine year period over several states is the fact that several dozen of them is not a substantial burden. Of course, this is a statutory construct question and not a question of whether it’s an overly burdening of course, but this court in Martinez adopted a very narrow rule to a very narrow context, anticipating it wouldn’t be significant burden.

Mr. Todd: (02:48:53)
You have no reason to think that [inaudible 02:48:55] was right, that this happens rarely.

Mr. Lope: (02:48:57)
Correct, your honor.

Mr. Todd: (02:48:58)

Mr. Lope: (02:48:59)
And the record has born that out. What this court, particularly Martinez, is this would not be as a given burden, but it would be an important, necessary way to vindicate one of the most important rights in the Constitution. And that’s been born out over the last-

Mr. Todd: (02:49:11)
That’s because this is a completely unusual situation as you pointed out. No court would have reviewed this evidence to see if someone was guilty as charged, correct?

Mr. Lope: (02:49:25)
There’d be no court, which could meaningfully review the ineffective trial counsel claim here.

Mr. Todd: (02:49:31)
That’s the Martinez’s point, correct? And the kind of evidence that was adduced for Mr. Jones, showing that the murder charges against him were baseless and the kind of evidence adduced as to Mr. Ramirez showing that there’s substantial mitigation evidence, that he should not be given the death penalty would’ve never seen the light of day, but for the appointment of competent counsel, who then were given a chance to develop the record and to present that evidence to federal court.

Justice Kavanaugh: (02:50:00)
One of the things that your friend on the other side says in response to what you just said, and I have no idea whether this is sufficient, but I just want you to respond to it, is they say Arizona has a forum for raising actual innocence claims, can you respond to their raising of that point?

Mr. Lope: (02:50:19)
To say that you have a forum for hearing it, and one where no one’s ever succeeded in to raise an actual innocence claim is not giving a forum to vindicate one of the most vital rights, the right to effective trial counsel. That whether you’re innocent or guilty, you have a right to fair hearing. You have a right to an effective trial counsel, and you have a right to have that vindicated. So it’s like them saying, if you’re coaching a basketball game and one team gets five players, and one team gets one player and we’re going to play the game. But at the end of the game, we’re going to give you a shot from half court, and that’s going to make the game fair. That does not make the game fair, your honor. There’s a right to trial counsel here. And there was never a fair trial for Mr. Ramirez or for Mr. Jones, right?

Mr. Lope: (02:51:06)
And the fact that they give a hail Mary opportunity for relief at the end of the day, or can give a pardon to Mr. Jones, that does not mean that the right to effective trial counsel was being vindicated here. And as Justice Sotomayor pointed out as a third argument, which pertains only to Mr. Ramirez, which there was no real meaningful response here because Mr. Ramirez in the appeal before the panel in the Ninth Circuit, it clearly was relying on materials beyond that what was presented to the state court. And that was not rejected by the state before the panel was not objected to. They didn’t say, well, E2 bars consideration thei evidence.

Mr. Lope: (02:51:53)
They told the panel to consider that evidence and the panel then went on to render a decision based on the arguments that they made without even them raising E2. And then they have I think the audacity and their search petition is like to say, well, E2’s not even mentioned in the Ninth Circuit position. Well, it’s not mentioned because they didn’t raise it. So it’s completely sandbagged the Ninth Circuit panel here by only raising this in the embanked petition, and then the [inaudible 02:52:19] petition and blaming the panel for never reaching the issue that they didn’t raise. They made a decision not to raise E2 before the panel. That’s a waiver. If it’s not fair to the panel, it’s certainly not fair to Mr. Ramirez. He would’ve responded to the E2 argument if it was raised before the panel. So for Mr. Ramirez, you should affirm on the additional basis that the claims against him were waived.

Speaker 3: (02:52:41)
Justice Thomas?

Justice Thomas: (02:52:42)

Speaker 3: (02:52:51)
[inaudible 02:52:51].

Speaker 4: (02:52:51)
Thank you, counsel. Rebuttal, Mr. Royston.

Mr. Royston: (02:52:58)
Thank you, your honor. If I can make three brief points. First as to the question of, is there a case that deals with this paradox of the implications of a judge made versus statute? The dissent at the Ninth Circuit page 373 of the joint appendix cited Ross V. Blake. Congress sets the rules and courts have a role in creating exceptions only if Congress wants them to. And I think that’s the fundamental question.

Mr. Royston: (02:53:20)
Here, Congress through A and B by setting such a high bar for having an evidentiary hearing. Even actual innocence is not enough, has made clear it does not want the court to create additional exceptions. And the building block is Williams. As to the agency principles Williams clearly holds at head note six, that attributable to the prisoner or the prisoner’s counsel. So I think the answer is already been decided.

Mr. Royston: (02:53:44)
The second point, I think there’s a faulty assumption that Martinez somehow guarantees the right to have the claim heard in federal habeas and district court. That’s wrong. Even in a state where ineffective assistance of trial counsel is brought in direct appeal, if there’s one level of post-conviction review and that post-conviction review counsel does not pursue those claims, then as a matter of independent and adequate state law, the federal court can’t hear it. So I don’t think Martinez was doing anything more than what it purported to do, which was to narrowly create an equitable basis for cause following a procedural default.

Mr. Royston: (02:54:21)
As to the waiver on Ramirez, just to be clear, the state’s position up to the panel hearing was even if you look at that evidence, it’s not going to establish an effective assistance of trial counsel. This is the classic death penalty claim that I needed more mitigation than what I got. That’s the run of the mill case. The state won at the district court on it. It didn’t present it as an alternative basis for affirmance, but once the Ninth Circuit said, no, we’re going to have yet another hearing on the claim, the state timely objected through a petition for re-hearing and re-hearing on bond. With that, I respectfully ask that the court reverse both judgments of the Ninth Circuit. Thank you.

Speaker 3: (02:54:59)
Thank you, counsel, counsel. The case is submitted.

Chief Justice John G. Roberts, Jr.: (02:55:03)
The honorable court is now adjourned until Monday, the 10th of January at 10: 00.

Chief Justice John G. Roberts, Jr.: (02:55:30)

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