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P:\00000 USSC\15-577 Amici (Nevada) NO. 15-577 In the Supreme Court of the United States TRINITY LUTHERAN CHURCH OF COLUMBIA, INC., Petitioner, v. SARA PARKER PAULEY, DIRECTOR, MISSOURI DEPARTMENT OF NATURAL RESOURCES, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit BRIEF OF THE STATES OF NEVADA, ARIZONA, ARKANSAS, COLORADO, GEORGIA, MONTANA, OHIO, OKLAHOMA, UTAH & WISCONSIN AS AMICI CURIAE IN SUPPORT OF PETITIONER ADAM PAUL LAXALT Attorney General of Nevada LAWRENCE VANDYKE* Solicitor General JOSEPH TARTAKOVSKY Deputy Solicitor General 100 North Carson Street Carson City, NV 89701 (775) 684-1100 [email protected] * Counsel of Record Counsel for Amicus Curiae Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001 i QUESTION PRESENTED Under the U.S. Constitution, particularly the Free Exercise and Equal Protection Clauses, can a State, after choosing to offer a neutral, generally available program to the public, administer it in ways that exclude some citizens on account of their religious beliefs? ii TABLE OF CONTENTS QUESTION PRESENTED.................... i TABLE OF AUTHORITIES.................. iii INTEREST OF AMICI CURIAE ............... 1 INTRODUCTION AND SUMMARY OF ARGUMENT ............................ 2 ARGUMENT............................... 3 I. Locke and the No-Aid conundrum ......... 3 II. Blaine’s background.................... 7 III. The “sectarian” problem ................. 8 IV. The keys: “neutrality” and “general availability” .......................... 10 V. Principles pushed to the extreme ........ 13 CONCLUSION ............................ 16 iii TABLE OF AUTHORITIES CASES Agostini v. Felton, 521 U.S. 203 (1997) ...................... 12 Americans United v. Rogers, 538 S.W.2d 711 (Mo. 1976) ................ 17 Bd. of Educ. v. Grumet, 512 U.S. 687 (1994) ...................... 13 Bradfield v. Roberts, 175 U.S. 291 (1899) ...................... 15 Bronx Household of Faith v. Bd. of Educ., 750 F.3d 184 (2d Cir. 2014) ................ 15 Bush v. Holmes, 886 So. 2d 340 (Fla. Dist. Ct. App. 2004) .... 5, 6 Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973) ............... 11 Duncan v. Nevada, No. A-15-723703-C (Nev. D. Ct., Clark Cnty., filed Aug. 27, 2015) ....................... 1 Everson v. Bd. of Educ. of Ewing, 330 U.S. 1 (1947) .................. 10, 12, 13 Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) ........................ 14 Larson v. Valente, 456 U.S. 228 (1982) ....................... 9 Lemon v. Kurtzman, 403 U.S. 602 (1971) ................... 11, 16 iv Locke v. Davey, 540 U.S. 712 (2004) .................. passim Luetkemeyer v. Kaufmann, 364 F. Supp. 376 (W.D. Mo. 1973) . 10, 11, 13, 14 Luetkemeyer v. Kaufmann, 419 U.S. 888 (1974) ...................... 11 McCollum v. Bd. of Educ., 333 U.S. 203 (1948) ...................... 16 McDonald v. City of Chicago, 561 U.S. 742 (2010) ...................... 10 Mitchell v. Helms, 530 U.S. 793 (2000) ................ 6, 7, 8, 12 Mueller v. Allen, 463 U.S. 388 (1983) ...................... 12 Nat’l Rifle Ass’n of Am., Inc. v. City of Chicago, 567 F.3d 856 (7th Cir. 2009) ............... 10 Paster v. Tussey, 512 S.W.2d 97 (Mo. 1974) ................. 17 Roemer v. Bd. of Pub. Works, 426 U.S. 736 (1976) ...................... 14 Saint Louis Univ. v. Masonic Temple Ass’n, 220 S.W.3d 721 (Mo. 2007) ................ 17 Sherbert v. Verner, 374 U.S. 398 (1963) ...................... 12 Taxpayers for Pub. Educ. v. Douglas Cnty. Sch. Dist., 351 P.3d 461 (Colo. 2015) ........... 1, 5 v Thomas v. Review Bd., 450 U.S. 707 (1981) ...................... 11 Trinity Lutheran Church of Columbia, Inc. v. Pauley, 778 F.3d 779 (8th Cir. 2015) .......... 1 Walz v. Tax Comm’n, 397 U.S. 664 (1970) ...................... 13 Wisconsin v. Yoder, 406 U.S. 205 (1972) ................... 15, 16 Zelman v. Simmons-Harris, 536 U.S. 639 (2002) ................... 7, 8, 9 Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) ........................ 12 CONSTITUTION AND STATUTES Ala. Const. art. XIV, § 263 .................... 8 Alaska Const. art. VII, § 1 .................... 8 Ariz. Const. art. IX, § 10...................... 8 Cal. Const. art. XVI, § 5 ...................... 8 Colo. Const. art. IX, § 7....................... 8 Del. Const. art. X, § 3 ........................ 8 Fla. Const. art. I, § 3......................... 8 Ga. Const. art. I, § II, Para. VII................ 8 Idaho Const. art. IX, § 5 ...................... 8 Ill. Const. art. X, § 3 ......................... 8 Kan. Const. art. VI, § 6(c)..................... 8 vi Ky. Const. § 189 ............................ 8 Mich. Const. art. I, § 4 ....................... 8 Minn. Const. art. XIII, § 2 .................... 8 Miss. Const. art. VIII, § 208 ................... 8 Mo. Const. art. I, § 7....................... 4, 8 Mo. Rev. Stat. § 260.273(6)(2) ................. 15 Mont. Const. art. X, § 6....................... 8 Neb. Const. art. VII, § 11 ..................... 8 Nev. Const. art. XI, § 10...................... 8 Nev. Const. art. I, § 2 ........................ 1 Nev. Rev. Stat. § 228.170 ..................... 1 N.D. Const. art. VIII, § 5 ...................... 8 Ohio Const. art. VI, § 2....................... 8 Okla. Const. art. II, § 5....................... 8 Pa. Const. art. III, § 15 ....................... 8 S.D. Const. art. VIII, § 16 ..................... 8 Tex. Const. art. I, § 7......................... 8 Utah Const. art. X, § 1 ....................... 8 Va. Const. art. IV, § 16....................... 8 Wash. Const. art. IX, § 4...................... 8 Wyo. Const. art. I, § 19....................... 8 vii OTHER AUTHORITIES Steven K. Green, The Insignificance of the Blaine Amendment, 2008 B.Y.U. L. Rev. 295 (2008) . 9 John C. Jeffries & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279 (2001) ........................ 9 Richard D. Komer and Clark Neily, School Choice and States Constitutions, Inst. for Justice and Am. Legislative Exch. Council (Apr. 2007) ..... 3 Vincent P. Lannie, Alienation in America: The Immigrant Catholic and Public Education in Pre-Civil War America, 32 Rev. Pol. 503 (1970) .................................. 9 Robert Middlekauff, The Glorious Cause: The American Revolution, 1763-1789 (1982) ....... 7 Petition for Writ of Certiorari, Colo. State Bd. of Educ. v. Taxpayers for Pub. Educ., No. 15-558 (U.S. filed Oct. 28, 2015) ................... 6 Petition for Writ of Certiorari, Douglas Cnty. Sch. Dist. v. Taxpayers for Pub. Educ., No. 15-557 (U.S. filed Oct. 28, 2015) ................... 6 Petition for Writ of Certiorari, Doyle v. Taxpayers for Pub. Educ., No. 15-556 (U.S. filed Oct. 27, 2015) ................................... 6 Leslie H. Southwick, Presidential Also-Rans and Running Mates, 1788 through 1996 (2d ed. 1998) ................................... 7 1 INTEREST OF AMICUS CURIAE1 The State of Nevada and other Amici States have a vital interest in protecting the constitutional rights of all state residents—whatever their religious beliefs. For example, the State of Nevada exists “for the protection, security and benefit of the people.” Nev. Const. art. I, § 2. Consistent with those obligations, the State—acting through its Attorney General—is authorized by its citizens to commence, join, or participate in any suit necessary “to protect and secure the interest of the State.” Nev. Rev. Stat. § 228.170. Amici States’ interest is particularly acute here. At least three States—Nevada, Colorado, and Missouri—are currently confronted with litigation that raises questions about the limits that the U.S. Constitution imposes on state constitutions’ Blaine or No-Aid provisions. See, e.g., Duncan v. Nevada, No. A- 15-723703-C (Nev. D. Ct., Clark Cnty., filed Aug. 27, 2015); Taxpayers for Pub. Educ. v. Douglas Cnty. Sch. Dist., 351 P.3d 461 (Colo. 2015), petitions for a writ of cert. pending, Nos. 15-556, 15-557, 15-558; Trinity Lutheran Church of Columbia, Inc. v. Pauley, 778 F.3d 779 (8th Cir. 2015), petition for a writ of cert. pending, No. 15-577. State and lower federal courts are deeply split on those limits, and States frequently find themselves as defendants on both sides of the question. 1 Counsel for Nevada notified parties’ counsel of record more than ten days before the filing of this amicus brief. 2 INTRODUCTION AND SUMMARY OF ARGUMENT In 2004, this Court in Locke v. Davey said that Washington State could exclude from a state’s tuition aid program a collegian seeking a “devotional degree” that, by its nature, was “an essentially religious endeavor.”2 So this theology student could not enjoy state aid that his classmates in, say, anthropology or film studies might. But the Court emphasized that Washington’s program went “a long way toward including religion in its benefits,” and that its narrow restrictions on an otherwise broadly available public benefit were carefully tailored to avoid “funding the religious training of clergy,” which historically “was one of the hallmarks of an ‘established’ religion.”3 Other than Locke, this Court has in recent years consistently emphasized the principle of neutrality in considering programs of generally available state aid: religious individuals and organizations should not be treated any better than other eligible recipients of state money, but no worse either. See infra, Section IV. But since Locke, state and federal jurists have widely disagreed on how much of an exception Locke’s “play in the joints” metaphor allows in excluding religious
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