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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . ii

INTEREST OF AMICUS . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. IT IS UNCONSTITUTIONAL INVIDIOUSLYTO DISCRIMINATE IN A SECULARBENEFITS PROGRAM AGAINST ANOTHERWISE ELIGIBLE ENTITY SOLELYBECAUSE OF ITS RELIGIOUS IDENTITY OR ACTIVITIES . . . . . . . . . . . . . . . . . . . . . . . . 2

II. LOCKE v. DAVEY PROVIDES NO SOLIDFOOTING FOR A CONTRARY RESULT . . . . 5

A. THE LOCKE DECISION IS ITSELFQUESTIONABLE . . . . . . . . . . . . . . . . . . . . 6

B. THE LOCKE DECISION WASUNNECESSARY . . . . . . . . . . . . . . . . . . . . . 8

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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TABLE OF AUTHORITIES

Cases Page

Carey v. Brown, 447 U.S. 455 (1980) . . . . . . . . . . . 4

City of Cleburne v. Cleburne Living Ctr.,473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . . 3, 4

Clark v. Jeter, 486 U.S. 456 (1988) . . . . . . . . . . . . . 4

Everson v. Board of Educ., 330 U.S. 1 (1947) . . . . 3

Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001) . . . . . . . . . . . . . . . . . . . . . . 3

Lamb’s Chapel v. Center MorichesUnion Free Sch. Dist., 508 U.S. 384 (1993) . . . 3

Locke v. Davey, 540 U.S. 712 (2004) . . . . . . . . . . 5-10

Lynch v. Donnelly, 465 U.S. 668 (1984) . . . . . . . . . 2

McDaniel v. Paty, 435 U.S. 618 (1978) . . . . . . . . . . 3

Mueller v. Allen, 463 U.S. 388 (1983) . . . . . . . . . . . 2

Pierce v. Society of Sisters, 268 U.S. 510 (1925) . . . 4

Pleasant Grove City v. Summum, 555 U.S. 460 (2009) . . . . . . . . . . . . . . . . . . . . . 1

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R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) . . . . . . . . . . . . . . . . . . . . . 4

Rosenberger v. Rectors & Visitors of Univ. of Va., 515 U.S. 819 (1995) . . . . . . . . . . . 3

Trinity Lutheran Church v. Comer, 137 S. Ct. 2012 (2017) . . . . . . . . . . . . . . . 1, 3, 5

United States Dept. of Agriculture v. Moreno,413 U.S. 528 (1973) . . . . . . . . . . . . . . . . . . . . . 4

Van Orden v. Perry, 545 U.S. 677 (2005) . . . . . . . . 4

Walz v. Tax Comm’n of NY, 397 U.S. 664 (1970) . . 2

Constitutional Provisions and Statutes

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . 3, 4, 5

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . 3, 4

Wash. Admin. Code § 250-80-010 . . . . . . . . . . . . . . 8

Wash. Admin. Code § 250-80-070 . . . . . . . . . . . . . . 8

Other Authorities

Joshua Davey, The Real Losers of Locke v. Davey, Icthus (Apr. 1, 2004) . . . . . . . . . . . . . . 10

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INTEREST OF AMICUS1

The American Center for Law and Justice (ACLJ)is an organization dedicated to the defense ofconstitutional liberties secured by law. ACLJ attorneysoften appear before this Court as counsel for a party,e.g., Pleasant Grove City v. Summum, 555 U.S. 460(2009), or amicus, e.g., Trinity Lutheran Church v.Comer, 137 S. Ct. 2012 (2017), addressing a variety ofissues of constitutional law. The ACLJ is dedicated,inter alia, to religious liberty and freedom of speech.

SUMMARY OF ARGUMENT

In the distribution of religion-neutral benefits(here, tax credits for donations to private scholarshipfunds), the government may not disfavor otherwiseeligible private entities solely on the basis of theirreligious identity or activities. The lower court’srejection of that norm warrants review. Importantly,this Court’s decision in Locke v. Davey, 540 U.S. 712(2004), does not require a contrary result.

ARGUMENT

Governments often employ tax incentives(exemptions, credits, and deductions) to pursue desiredsocial goods, such as the fostering of charitable works

1 Counsel of record for the parties in this case received timelynotice of the intent to file this brief and emailed written consentfor its filing. No counsel for any party authored this brief in wholeor in part. No person or entity aside from the ACLJ, its members,or its counsel made a monetary contribution intended to fund thepreparation or submission of this brief.

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and the education of children. That the incentivizedactivities may involve religious entities or pursuit ofreligious goals is not a constitutional problem. Walz v.Tax Comm’n of NY, 397 U.S. 664 (1970) (taxexemption included properties dedicated to religiouspurposes); Mueller v. Allen, 463 U.S. 388 (1983)(deduction for education expenses included expenses atprivate religious schools). What the government maynot do is discriminatorily exclude otherwise qualified,eligible entities solely because of their religiousidentity or activities. This norm follows from much ofthis Court’s jurisprudence. The Montana SupremeCourt nevertheless declared that an otherwise neutraltax credit program for private donations to educationalscholarship funds is impermissible, solely because somescholarship funds might go to religious schools. ThisCourt should grant review and reverse the judgmentbelow.

I. IT IS UNCONSTITUTIONAL INVIDIOUSLYTO DISCRIMINATE IN A SECULARBENEFITS PROGRAM AGAINST ANOTHERWISE ELIGIBLE ENTITY SOLELYBECAUSE OF ITS RELIGIOUS IDENTITYOR ACTIVITIES.

Express governmental discrimination, in a secularbenefits program, against an otherwise qualifiedentity, solely because of that entity’s religious identityor activities, is generally unconstitutional. Yet theMontana Supreme Court ordered precisely suchdiscriminatory exclusion.

The Constitution “forbids hostility” toward “allreligions,” Lynch v. Donnelly, 465 U.S. 668, 673 (1984).

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“State power is no more to be used so as to handicapreligions than it is to favor them.” Everson v. Board ofEduc., 330 U.S. 1, 18 (1947). The EstablishmentClause “commands that . . . [a state] cannot excludeindividual Catholics, Lutherans, Mohammedans,Baptists, Jews, Methodists, Non-believers,Presbyterians, or the members of any other faith,because of their faith, or lack of it, from receiving thebenefits of public welfare legislation.” Id. at 16.

This Court has therefore held that it violates theFirst Amendment (specifically, the Free ExerciseClause) to target clergy for special political disabilities.McDaniel v. Paty, 435 U.S. 618 (1978). This Court haslikewise held, in the context of a speech forum, that itviolates the First Amendment to exclude an entitybecause of its religious message, e.g., Lamb’s Chapel v.Center Moriches Union Free Sch. Dist., 508 U.S. 384(1993); Good News Club v. Milford Cent. Sch., 533 U.S.98 (2001), including when a funding program is atissue, Rosenberger v. Rectors & Visitors of Univ. of Va.,515 U.S. 819 (1995). Most recently, this Court heldthat the exclusion of an otherwise eligible recipientfrom a government grant program, solely because thatentity is religious in nature, violates the Free ExerciseClause. Trinity Lutheran Church v. Comer, 137 S. Ct.2012 (2017).

This Court has also held that the Equal ProtectionClause commands that “all persons similarly situatedshould be treated alike.” City of Cleburne v. CleburneLiving Ctr., 473 U.S. 432, 439 (1985), and thatdiscrimination triggered by the exercise of afundamental right – here, the religious educationalchoices of parents in need of scholarship funds –triggers strict scrutiny under the Equal ProtectionClause. Clark v. Jeter, 486 U.S. 456, 461 (1988)

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(classifications affecting fundamental rights triggerstrict scrutiny). A fortiori, restrictions that rest on nomore than “a bare desire to harm” – or exclude – aparticular group are impermissible, Cleburne, 473 U.S.at 446-47 (citing United States Dept. of Agriculture v.Moreno, 413 U.S. 528, 534 (1973)).

It follows that a government’s posting of a “noreligious choices or entities allowed” sign, whetherliteral or figurative, would run afoul of both the EqualProtection Clause and the religion and speech2 clausesof the First Amendment. See also Pierce v. Society ofSisters, 268 U.S. 510 (1925) (upholding parental rightto choose religious schools for their children).

A contrary ruling would authorize gratuitoushostility against those who choose religious entities fordonations, education, services, etc. A state or federalgovernment could disallow deductions for charitablecontributions only to religious charities. Use of publicparks could be free except for church events. Tours ofmuseums and state capitols could be free for allstudent groups except those from religious schools. Agovernment transportation agency could allow free(and thus subsidized) use of express lanes by HOVvehicles except for buses carrying children to or fromreligious schools.

Such a rule is a massive overreaction to establish-ment concerns, see Van Orden v. Perry, 545 U.S. 677,704 (2005) (Breyer, J., concurring in judgment) (“theFirst Amendment does not prohibit practices which by

2The standards for reviewing discrimination against areligious message or viewpoint are the same under the FreeSpeech and Equal Protection Clauses. E.g., Carey v. Brown, 447U.S. 455, 463 (1980); R.A.V. v. City of St. Paul, 505 U.S. 377, 384n.4 (1992).

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any realistic measure create none of the dangers whichit is designed to prevent”) (internal quotation marksomitted), and, in a land settled by believers seekingreligious freedom, is ahistorical, ironic, and “odious,”Trinity Lutheran, 137 S. Ct. at 2025.

The Montana Supreme Court’s ruling in this caserequired precisely what the Constitution forbids. ThisCourt should grant review and reverse.

II. LOCKE v. DAVEY PROVIDES NO SOLIDFOOTING FOR A CONTRARY RESULT.

In the court below, Montana invoked this Court’sdecision in Locke v. Davey, 540 U.S. 712 (2004), assupplying a basis for the supposed constitutionality ofa “no choice of religious schools” rule. Locke, of course,does not embrace any such proposition, and in facttook special note of the state’s inclusion of religiousschools in its scholarship program. Id. at 724. In anyevent, as petitioners document, the lower courts aresharply divided over the significance of Locke for caseslike this, warranting review. Pet. § I. Locke, moreover,provides very unsteady footing for any rule that wouldjustify targeted religious discrimination.

Locke worked no revolution in constitutionaljurisprudence. Locke did not purport to overturn anyof this Court’s precedents. Nor did it challenge thenotion that discrimination against churches as suchwould violate the Constitution. See 540 U.S. at 724(distinguishing government action “evincing hostilitytoward religion”). To the contrary, Locke expresslydistinguished a situation like the one here, wheresomeone or something had “to choose between theirreligious beliefs and receiving a government benefit.”Id. at 720-21.

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Moreover, the Locke decision represents anespecially ill-suited candidate for the construction of anew, religion-antagonistic body of law.

A. THE LOCKE DECISION IS ITSELFQUESTIONABLE.

At issue in Locke was a state’s decision to deny ascholarship to an incoming college student who hadannounced his intention to pursue a major indevotional theology. 540 U.S. at 716-17. The majorityruled that this denial reflected a historically basedrefusal to use tax money to fund the training andmaintenance of clergy. Id. at 722-23 & n.6. To be sure,that “historic and substantial” concern, id. at 725, wasreal. However, that concern addressed a specialprivilege being afforded to clergy, not a common benefitbeing denied to clergy. In other words, the state’s bootin Locke far exceeded the historical footprint.

There is a huge difference in kind, not just indegree, between doling out a special benefit to a selectprofession (i.e., clergy) and singularly denying anotherwise generally available benefit (i.e.,scholarships, access to public parks, use of publiclibraries) only to the select group. The first is aprivilege; the second is blatant discrimination. See id.at 727 (Scalia, J., dissenting) (“Davey is not asking fora special benefit to which others are not entitled. . . .He seeks only equal treatment”).

The Locke majority sought to counter thisdisconnect between the state interest and thechallenged restriction by asserting that “training forreligious professions and training for secularprofessions are not fungible,” and that “[t]rainingsomeone to lead a congregation is an essentially

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religious endeavor.” Id. at 721. There is some truth tothis. But the Locke majority’s rejoinder proves far toomuch. The same could be said of countless other acts:carrying a religious icon in procession vs. carrying apolitical banner; wearing a yarmulke vs. wearing apullover cap; growing a long beard for religiousreasons vs. growing a beard for health or style. In eachsuch case, to single out the religious act for restraint,when the comparable (and, in secular terms,indistinguishable) act is not so restrained, is antireligious discrimination.

Morever, the “essential” difference betweenreligious and secular professions is only visible to thetheological eye. That is, the nonbeliever considersreligious acts to be meaningless rituals of no greatersignificance than a Zumba exercise. Only to the eyes offaith is the religious act “essentially” different. Yet thefederal and state courts are not equipped or evenpermitted to render such inherently religiousassessments. While disallowing a special assessmentfor ministers did not require courts to determinewhether Ethical Culture or Veganism counts as areligion – nobody got tax money for their profession –a targeted exclusion of what is “essentially religious”from an otherwise general benefits programnecessarily thrusts courts into the theological thicket.

The distinction between special privileges andunique disabilities has growing importance in a timeof expanding government. The more benefits andservices the state undertakes to pay, deliver, control,or manage, the more important it becomes to resistdiscriminatory disqualifications. When the stateundertakes, for example, to foot the bill for healthcarefor the populace or a segment thereof, it would beplainly discriminatory to disqualify otherwise eligible

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ministers, and only ministers, for this tax-fundedbenefit.

In short, the rationale of Locke rests upon a basiccategory error. Disavowing that error leaves Lockewithout its asserted historical foundation. But even ifthis Court were to leave Locke entirely intact, Lockewould not control this case involving the whollysecular benefit of a tax credit fostering parental choicein education.

B. THE LOCKE DECISION WASUNNECESSARY.

Compounding the weakness of the rationale inLocke is the fact that determination of the opinion’scentral issue was completely unnecessary to resolvethe case. In actuality, the restriction at issue in Lockewas so poorly tailored to the state’s proffered rationaleas to be irrational, having no real effect except topenalize those students who were guileless enough todeclare a major in devotional theology before they wererequired to do so.

The scholarship at issue in Locke, the PromiseScholarship, was available to graduating high schoolstudents for use only in the first two years of collegestudy. Wash. Admin. Code §§ 250-80-010, 250-80-070(1), (4); Locke, 540 U.S. at 715-16. It could be usedfor any college “education-related expense, includingroom and board,” 540 U.S. at 716. Students who didnot declare any major during their first two years ofcollege, or who declared a major other than devotionaltheology, could receive the Promise Scholarship. Brieffor Respondent at 10 & n.4, Locke v. Davey, No. 02-1315 (U.S. Sept. 8, 2003) (citing record and noting thatthe state relied, in its answer, upon the ability of

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students to decline to announce a major and retaintheir eligibility for the scholarship). But any studentwho declared a major in devotional theology – i.e.,theology taught from a believing perspective – waspenalized with the loss of scholarship eligibility. 540U.S. at 716. Thus, the scholarship program in Locke: • Did not bar the use of tax funds for the study of

devotional theology or ministerial training, even ifthe student fully intended to become a minister, solong as the student did not declare a major, id. at725 & n.9;

• Did not bar the use of tax funds for the study ofdevotional theology or ministerial training as anelective or even a required course, even if thestudent fully intended to become a minister, solong as the student declared a different major, id.;

• Did not bar the use of tax funds for the study oftheology, even by an actual minister or minister intraining, so long as the theology was taught froma nonbelieving perspective, id. at 716.

However, the restrictions at issue did disqualify astudent with a declared major in devotional theology:• Even if the student took no more courses in

devotional theology during the covered freshmanand sophomore years than were required of allother students at the same school, id. at 725 & n.9;

• Even if the student subsequently changed hiscareer plans and did not become clergy, likeJoshua Davey himself, who attended Harvard LawSchool, see Joshua Davey, The Real Losers of Lockev. Davey, Icthus (Apr. 1, 2004), available athttp://www.harvardichthus.org/2004/04/the-real-losers-of-locke-v-davey/, and is now a law firmpartner , https://www.mcguirewoods.com/People/D/Joshua-D-Davey.aspx#overview.

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Thus, the restriction at issue in Locke, whichsupposedly furthered the goal of avoiding tax funding“for vocational religious instruction,” 540 U.S. at 725,was almost completely ineffectual. Scholarshiprecipients, including clergy in training, could usescholarship funds for devotional theology study so longas they had declared a different major or were savvyenough not to declare any major. Meanwhile, studentslike Joshua Davey were penalized for their voluntarydeclaration of a major that they were not evenrequired subsequently to pursue. Ultimately, thehaphazardly tailored restriction in Locke was no morethan a penalty for a college freshman’s forthrightnessregarding his expected major, or a punishment for hismistaken predictions about his future study plans.

The Locke Court should have struck down therestrictions at issue as an irrational penalty on freespeech (declaring a major) and religious exercise(declaring one’s intent to pursue a religious vocation)that fails even minimal scrutiny. That case shouldcertainly not be rewritten into the basis for a new,broad mandate to treat religious entities as pariahs.