# Amicus Curiae Brief — Witters v. Washington Department of Services for the Blind > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0164%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1986 - **Citation:** 474 U.S. 481 ## Text «Supreme Court, US. FILED JUN @ 1985 () No. 84-1070 AREXANDER L. STEVAS Iu the Supreme Court of the OCTOBER TERM, 1984 LARRY WITTERS, PETITIONER Vv. WASHINGTON DEPARTMENT OF SERVICES FOR THE BLIND ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF WASHINGTON BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PETITIONER CHARLES FRIED Acting Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General MICHAEL W. McCONNELL Assistant to the Solicitor General ANTHONY J. STEIN MEYER MICHAEL JAY SINGER Attorneys Department of Justice Washington, D.C. 20530 (202) 633-2217 QUESTION PRESENTED The United States will address the following ques- tion: Whether the Establishment Clause requires a State to deny financial assistance for the education of a blind person who is otherwise eligible for such assis- tance under the State’s vocational rehabilitation pro- gram solely because the handicapped applicant in- tends to use that assistance to study for a church- oriented career. (I) TABLE OF CONTENTS I cscanneucccanenenacsccecees Argument: The Establishment Clause does not prevent a state from providing vocational rehabilitation benefits to a blind college student eligible under religiously neutral criteria where the student intends to use those benefits to pursue a church-oriented career... A. The history surrounding the enactment and early interpretation of the Establishment Clause demonstrates that neutral assistance to educa- tion is not unconstitutional 00000000000. B. When, for secular purposes, the government provides financial aid to individuals on a facially neutral basis, the individuals’ use of that aid for religious ends or in religious contexts does not co. *titute an establishment ..........0000000000.... C. The court below erred in its “primary effects” analysis by focusing on the religious use in isola- tion rather than on the full context of the pro- D. This Court need not, and should not, consider the remaining issues in the case SES TT TABLE OF AUTHORITIES Cases: American ‘"nited for the Separation of Church & State v. Blanton, 433 F. Supp. 97, aff’d, 434 U.S. cs snsnsmtnecmsecs Bender v. Williamsport Area School District, cert. granted, No. 84-773 (Feb. 19, 1985) —....0.... (III) 11 12 16 IV Cases—Continued : Page Board of Education v. Allen, 392 U.S. 236 ............ 17, 26 Board of Trustees v. McCreary, No. 84-277 (Mar. Riltiad TIED " strance } that the proposal “violates equality by subjecting some to peculiar burdens; so it violates the same principle, by granting to others peculiar exemptions” (id. at 66). The vice 13 Joseph Story, perhaps the leading commentator on the Constitut’on in the early days of the Republic, explained in a similar vein, “The real object of the [First] Amendment was * * * to prevent any na- tional ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the na- tional government.” 3 J. Story, Commentaries on the Constitution of the United States 728 (1833), quoted in Lynch v. Donnelly, slip op. 9. Similar in- terpretations were offered during this period by a unanimous Supreme Court in Terrett v. Taylor, 13 U.S. (9 Cranch) 48, 48-49 (1815) (concerning the Virginia disestablishment), and the Judiciary Com- mittee of the Senate in S. Rep. 376, 32d Cong., 1st Sess. 1 (1853). The Establishment Clause was not thought to pro- hibit neutral aid to education, religious as well as nonreligious. During the first half century under the Constitution, Congress frequently made land grants for the support of education, including schools op- in the proposal, in other words, was that it preferred one religion over the others. The weight of the historical evidence indicates that the Memorial and Remonstrance reflects a more strictly separa- tionist view than that espoused by Madison in Congress in connection with the Establishment Clause (which he in fact deemed unnecessary (1 Annals of Cong., supra, at 758) ), and that Madison’s views, in turn, were more radical on this issue than Congress and the S.~tes were willing to accept (hence the compromise language of the First Amendment). See, e.g., C. Antieau, A. Downey & E. Roberts, Freedom From Federal Establishment 126-142, 197-198 (1964); M. Malbin, Religion and Politics 16-17 (1978) ; see also R. Cord, Separa- tion of Church and State 20-36 (1982). Nonetheless, nondis- criminatory aid of the sort at issue here is consistent even with the views expressed in the Memorial and Remonstrance. 14 erated by religious denominations.’ See C. Antieau, A. Downey & E. Roberts, Freedom From Federal Es- tablishment 163-164 (1964). Congress made grants of land in 1832 and 1833 to two denominational col- leges in the District of Columbia—Columbia College and Georgetown College. Not until 1845 did Con- gress, for the first time, limit the use of land set aside for schools to “public schools.” Jbid. States having disestablishment laws of their own similarly supported religious as well as nonreligious education. Id. at 165, 168. One historian has commented that “it was a very common thing indeed for the civil authorities in the states which pretended to give free education only to pauper children, to pay the tuition of such children in denominational schools.” E. Reis- ner, Nationalism and Education Since 1789, at 364 (1922). The overriding principle was (in this Court’s later words) that ‘‘one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). The fear of a “‘nap6nal ecclesiastical establishment” may be remote at this juncture in our history; how- ever, it is as Vital today as it was at the founding to ensure that the power, resources, and prestige of the government not be turned to the services of a reli- gious sect or combination of sects. The point of the Establishment Clause is not to exclude religious insti- tutions or individuals from the benefits our society provides, but to guarantee that the government does not confer the “ ‘imprimatur of State approval’ ” on any particular religion, or on religion generally. 5 Indeed, one of the reasons stated for land grants for edu- cational purposes was to provide support for “[r]eligion, morality, and knowledge.” See Northwest Ordinance, ch. VIII, art. ITI, 1 Stat. 52. 15 Mueller vy. Allen, 463 U.S. at 399; Widmar v. Vin- cent, 454 U.S. 268, 274 (1981); see Lynch v. Don- nelly, No. 82-1256 (Mar. 5, 1984) (O’Connor, J., con- curring).® As the Court stated in Walz v. Tax Com- mission, 397 U.S. 664, 669 (1970), the “basic pur- pose” of the Religion Clauses “is to insure that no religion be sponsored or favored, none commanded, and none inhibited.” To allow individuals to receive the benefit of fa- cially neutral government programs, even where the individuals have a religious purpose or calling, does not signal government approval for their religion, but shows a wholesome “benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” Walz, 397 U.S. at 669; see McDaniel v. Paty, 435 U.S. 618, 638-639 (1978) (Brennan, J., concurring). It no more “advances” the cause of a religion to assist petitioner Witters, like other handicapped citizens of the State of Wash- ington, to obtain training for the career of his choice than it does to accord police and fire protection to ® Government nonetheless may accommodate or facilitate the practice of religion in ways not equally applied to non- religious activities. So long as such accommodations are neutral among religions, neither induce nor coerce religious beliefs, and are administered in a way that does not interfere with the autonomy of religious institutions, they are constitu- tional. See, e.g., NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) ; Wisconsin v. Yoder, 406 U.S. 205 (1972) ; Gillette v. United States, 401 U.S. 487 (1971); Zorach v. Clauson, 343 U.S. 306 (1952). Such accommodations do not establish a religion, but—in keeping with the special status of religion in the Constitution itself—accord special treatment to the liberty of religious exercise. See McDaniel v. Paty, 435 U.S. 618, 639 (1978) (Brennan, J., concurring). This case involves only equal treatment—not preferential accom- modation—of religion. 16 churches (in common with other buildings), to allow a Bible study group to meet in a public university (in common with other student groups) ,’ or to allow par- ents to deduct specified expenses of educating their children in religious schools from their taxes (in com- mon with other parents) .* On the contrary, to single out petitioner Witters’ choice of vocation would be to discriminate against religion—to relegate religion to a disfavored position in the public arena. “[W]e must be careful, in pro- tecting the citizens * * * against state-established churches, to be sure that we do not inadvertently pro- hibit [the State] from extending its general state law benefits to all its citizens without regard to their religious belief.” Everson v. Board of Education, 330 U.S. 1, 16 (1947); see McDaniel v. Paty, 435 U.S. at 688 (Brennan, J., concurring). B. When, For Secular Purposes, The Government Pro- vides Financial Aid To Individuals On a Facially Neutral Basis, The Individuals’ Use Of That Aid For Religious Ends Or In Religious Contexts Does Not Constitute Ar Establishment One of the most vexing questions in constitutional law has been when and under what terms religious institutions may participate in or benefit from public programs of general applicability. Although, as the Court stated in Roemer v. Board of Public Works, 426 U.S. 736, 746 (1976), “religious institutions need not be quarantined from public benefits that are neutrally available to all,” some of the Court’s most 7 Widmar V. Vincent, supra; see also Bender v. Williamsport Area School District, cert. granted, No. 84-773 (Feb. 19, 1985). 8 Mueller v. Allen, supra. 17 difficult and controversial decisions have been con- cerned with how to ensure that government aid pro- vided, for legitimate and secular purposes, to reli- gious institutions is not used to foster their religion. See, e.g., Lemon v. Kurtzman, supra; Tilton v. Rich- ardson, 403 U.S. 672 (1971); Committee for Pu lic Education & Religious Liberty v. Regan, 444 U.S. 646 (1980). The conflict over aid to parochial ele- mentary and secondary schools has been especially sensitive, because of the particular danger in that context of government aid being understood as con- tributing to religious indoctrination. In contrast, the Court has rarely—indeed, only . once, and then in circumstances far different from these—found that the Constitution bars neutral fi- nancial aid to individual recipients merely because they choose to use the aid in religious contexts or for their own religious purposes. It is “noteworthy that all but one of [the Court’s] recent cases invalidating state aid to parochial schools have involved the direct transmission of assistance from the state to the schools themselves.” Mueller v. Allen, 463 U.S. at 399. The one exception is Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756 (1973), which involved a government aid program designed exclusively for the benefit of parents with children in nonpublic schools, rather than a general program for the benefit of all schoolchildren.’ ® See also Lemon v. Kurtzman, 403 U.S. at 621, in which the Court distinguished Everson and Board of Education v. Allen, 392 U.S. 236 (1968), on the ground that in those cases the “state aid was provided to the student and his parents—-not to the church-related school” ; Committee for Public Education & Religious Liberty vy. Nyquist, 413 U.S. at 781; Walz v. Taz Commission, 397 U.S. at 675. 18 The reasons for this distinction follow directly from the rationale for the Establishment Clause itself. When government provides assistance to individuals for secular reasons, it is evident that the govern- ment is not using its resources to prefer one religion over another, or even religion over nonreligion—even though some individuals may make use of the bene- fit in a religious manner. The ultimate use and allo- cation of the benefit will not be determined by the government, but “only as a result of numerous, pri- vate choices of individual” citizens. Mueller v. Allen, 463 U.S. at 399. In this respect, the provision of aid here is similar to the tax deductibility of contributions to religious organizations. Although tax deductions for contribu- tions undoubtedly confer a substantial benefit on churches and synagogues—along with countless other charitable, educaticnal, scientific, cultural, and his- torical organizations—their constitutionality has never been questioned by this Court, precisely because the deductions operate to increase the “diversity and pluralism in all areas” of our society (see Lynch v. Donnelly, slip op. 8) and facilitate both the free exercise of religion by believers and similar volun- tary associational activities by their adherents. See generally Walz v. Tax Commission, 397 U.S. at 689 (Brennan, J., concurring). The State could, if it chose, channel its vocational assistance for handicapped persons toward careers the State deems appropriate, or insist that rehabil- itative programs be undertaken in educational insti- tutions operated by the State. However, to leave these decisions to the individuals involved is an equally permissible approach—one which enhances individual choice, increases the diversity of skills 19 available to society, and widens the range of educa- tional institutions in the community. Moreover, when government aid is provided w in- dividuals, as opposed to institutions, there is no dan- ger of entangling administrative relationships be- tween government and religious officials. Other than the relatively routine decision to accredit an educa- tional institution on the basis of educational quality —an administrative relation long held to be consti- tutional (see Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925))—such an approach does not in- volve the government in the affairs of the institu- tion. Cf. Walz v. Tax Commission, 397 U.S. at 675 (“Obviously a direct money subsidy would be a rela- tionship pregnant with involvement and, as with most governmental grant programs, could encompass sus- tained and detailed administrative relationships for enforcement of statutory or administrative stand- ards.”). Accordingly, as this Court has recently ob- served, “a program * * * that neutrally provides state assistance to a broad spectrum of citizens is not readily subject to challenge under the Establish- ment Clause.” Mueller v. Allen, 463 U.S. at 398-399. Federal government programs are structured in accordance with this constitutional framework. Gen- erally speaking, when benefits are provided to indi- viduals, the government does not require that the individual use the aid for nonreligious purposes or in nonreligious settings. The very context in which this case arises—higher education assistance—is a prime example. Grants directly to students, such as Pell Grants or GI Bill benefits, may be used by those students, if they choose, for education in reli- gious colleges or for training for church-oriented careers. See pages 2-4, supra. The federal govern- 20 ment does not consider it appropriate, on Establish- ment Clause grounds or any other, to limit the free- dom of students assisted under these programs to choose religious alternatives. The test for providing such benefits should not be whether the student’s chosen course of study is in a school sponsored by a religious group, has religious content, or leads to a religiously-oriented career, but whether it leads to a valid “educational, professional, or vocational objec- tive.” See 38 U.S.C. 1670.” On the other hand, when aid is provided directly to institutional grantees, limitations are often placed on the aid to ensure that it is used for secular pur- poses and not diverted to religious ends. See, ¢.g., 20 U.S.C. 122 (grants to Howard University may not be used for the support of the theological depart- ment) ; 20 U.S.C. 1021(c) (college or research library grants may not be used for written materials used in sectarian instruction or religious worship); 20 U.S.C. 1070e, 1070e-1 (cost of instruction grants to colleges may not be used for school of divinity, reli- gious worship, or sectarian activity) ; 29 U.S.C. 1517, 1 The only provision of which we know that might be considered an exception is 20 U.S.C. 1134e(g). The Secretary ef Education is authorized to make grants to institutions of higher education so that those institutions may ““mak[e] avail- able the benefits of post-baccalaureate education to graduate and professional students who demonstrate financial need.” 20 U.S.C. 1134d. Following provisions setting out priority cate gories for institutions and individual students (see 20 U.S.C. 1134e(d) and (e)), Section 1134e(g) provides that “[n]o fel- lowship shall be awarded under this part for study at a school or department of divinity.” 21 1577(a) (Job Training Partnership Act funds may not be used for religious facilities) ." The decision of the court below conflicts with this longstanding federal practice. Under the Washington Supreme Court’s decision, the government would have to engage in far more searching inquiry into stu- dents’ career objectives and courses of study than is now required—or even permitted—under law. A narrow interpretation of the decision would suggest 1 Restrictions applicable to Rehabilitation Act grants, which presumably are the source of federal funding for the program at issue here, are of this sort. In general, Depart- ment of Education regulations preclude grants to institutional entities when such entities would use them for religious pur- poses, but place no such restrictions on facially neutral grants to individuals. Certain multi-program regulations now ap- plicable to the Rehabilitation Act program prohibit the use of funds for “[r]Jeligious worship, instruction, or proselytiza- tion” (34 C.F.R. 76.532(a)(1)) or for “[a]n activity of a school or department of divinity” (34 C.F.R. 76.532(a) (4) ). These regulations are based on the Department’s interpre- tation of constitutional requirements. The Departmen’. has informed us that it interprets these restrictions as applying to grants to institutional grantees and subgrantees, but aot as precluding individuals who may be the ultimate beneficiaries of financial assistance under this program from usin:; it for vocational training in a school of divinity. The funds could not, for example, be granted to a university to make its divinity school accessible to the handicapped, but a scholarship grant under the program could be used by a handicapped individual to defray the cost of education at a divinity school. The multi-program regulations quoted above became ap- plicable to the Rehabilitation Act program only in 1981 (after petitioner applied for and was denied benefits), after re- sponsibility for administration of the program was trans- ferred to the Department of Education. At the time of peti- tioner’s application, grants under this program had no specific restrictions regarding religious uses. 22 that the State is forbidden to fund only the “religious education” of persons intending to become ministers (Pet. App. A10); although, since petitioner’s entire grant was disallowed, this narrow interpretation may not be correct.’ Under the full force of the Wash- ington Supreme Court’s logic, any funding of religious studies is presumably suspect. Accordingly, the Vet- erans’ Administration might well be required to insist that its state approving agencies (see page 3, supra) examine various unit courses taught at sec- tarian schools (such as Notre Dame University or Georgetown University) to determine whether they are religious or sectarian in nature, and the Depart- ment of Education might well have to require stu- dents to certify, as a condition of receiving a student loan, that they do not intend to enter the ministry. We submit that it is neither administratively feasible nor constitutionally appropriate for the government to engage in this type of inquiry. A neutral program of educational grants such as that now in place is, we submit, fully consonant with the Religion Clauses of the First Amendment. Indeed, this Court has repeatedly distinguished “public assistance (e.g., scholarships) made available generally without regard to the sectarian-nonsectar- ian, or public-nonpublic nature of the institution ben- efitted”—-specifically referring to the “G.I. Bill”— from impermissible forms of aid. Nyquist, 413 U.S. at 782-783 n.38; see also Mueller v. Allen, 463 U.S. at 398-399; Wolman v. Walter, 433 U.S. 229 (1977); Wolman v. Essex, 342 F. Supp. 399, 412 n.17 (S.D. Ohio), aff’d, 409 U.S. 808 (1972). And in Americans United for the Separation of Church & State v. 12 Some of petitioner’s course work—e.g., speech instruction (see page 6, swpra)—is apparently secular in nature. 23 Blanton, 433 F. Supp. 97 (M.D. Tenn.), aff’d, 434 U.S. 803 (1977), the Court summarily affirmed .a lower court decision upholding a state statute provid- ing aid to all needy college students, including but not limited to those in religious colleges."* The judgment of the Washington Supreme Court is inconsistent with these decisions. C. The Court Below Erred In Its “Primary Effects” Analysis By Focusing On The Religious Use In Isolation Rather Than On The Full Context Of The Program The Washington Supreme Court employed the three-part Establishment Clause analysis of Lemon v. Kurtzman, 403 U.S. at 612-613. See Pet. App. A5- A6. The court had no difficulty in concluding that the State’s program of vocational assistance to the blind has a legitimate secular purpose (id. at A6-A7). Cf. Wallace v. Jaffree, No. 83-812 (June 4, 1985), 13In Bob Jones University v. Jehnson, 396 F. Supp. 597 (D.S.C. 1974), aff’d, 529 F.2d 514 (4th Cir. 1975), the court held that while the receipt by students of GI Bill benefits constituted federal financial assistance to the church-affiliated university involved in that case for purposes of the civil rights laws, it did not constitute unconstitutional state aid for pur- poses of the Establishment Clause. Cf. Grove City College v. Bell, No. 82-792 (Feb. 28, 1984), slip op. 8, 10 n.15, citing Bob Jones University v. Johnson, supra. The reasons ad- vanced by the government and adopted by the Court in Grove City College for treating student grants as aid to the institu- tions for purposes of Title IX of the Education Amendments of 1972 derive from the statutory objectives and unambiguous legislative history. See slip op. 7-13. The constitutional standard for judging whether the “primary effect” of a pro- gram is to “advance religion,” which serves far different purposes, is not the same as that adopted by Congress under Title IX for determining when an institution must comply with laws against discrimination. 24 slip op. 17. Moreover, commenting that the “ ‘entan- glement’ inquiry is ill-suited to this case,” the court stated that “the administrative and trial court records do not provide an adequate factual basis to make the oo type of [entanglement] inquiry contemplated by the \. “i Sipreme Coure” tade-et Al12). The decision below thus rested entirely on a finding that “the principal or primary effect of the aid sought by [petitioner] would be to advance religion” (id. at A10).™ In analyzing the “primary effect” of the program, the court stated (Pet. App. A8) : Rather than look to the face of the rehabilitation statute, which is neutral in that benefits are pro- vided to the student irrespective of the type of school attended or the degree sought, we focus our attention on the particular aid sought by the [ petitioner]. The court accordingly found (id. at A9-A10) that “[t]he provision of financial assistance by the state to enable someone to become a pastor, missionary, or church youth director clearly has the primary effect of advancing religion. * * * It is not the role of the state to pay for the religious education of future ministers.” 4 If this Court reverses on the “primary effect” finding, and respondent chooses to litigate the issue of “ ‘entanglement’ ” on remand, it should be free to do so. As the court below recognized (Pet. App. Al2), the factual record is insufficient to support a finding of unconstitutionality on this ground, and further fact-finding might be in order. On the merits we submit, however, that the program at issue plainly does not entail an excessive entanglement between church and state. The only direct relationship involving the government is that with petitioner Witters; the government is not involved in overseeing or regulating the religious institutions at which petitioner has studied. 25 This analytical approach is, we submit, fundamen- tally in error. If a court focuses solely on the chal- lenged element in an overall program—i.e., solely on the religious element—it will always find that the “primary effect” is to advance (or inhibit) religion. “Focus exclusively on the religious component of any activity would inevitably lead to its invalidation un- der the Establishment Clause.” Lynch v. Donnelly, slip op. 10. The “crucial question is not whether some benefit accrues to a religious institution as a conse- quence of the legislative program, but whether its principal or primary effect advances religion.” Tilton v. Richardson, 403 U.S. at 679 (emphasis supplied). To determine whether the religious effect is “pri- mary,” one must necessarily examine that effect in the context of the program as a whole.” Here, for example, there can be no claim that the state vocational rehabilitation program, taken as a whole, runs afoul of the “effects” test, properly con- ceived. It is probable that only a tiny fraction of the beneficiaries use their vocational rehabilitation grants to prepare for a religious vocation.** Even the court below acknowledged (Pet. App. A8) that the program is “neutral in that benefits are provided to the stu- 15 The approach of the court below would be sound only if the Establishment Clause were held to prohibit any govern- ment action, the ultimate effect of which is to benefit religion —a view that has been consistently rejected by this Court. McDaniel v. Paty, 435 U.S. at 638 (Brennan, J., concurring) ; Hunt v. McNair, 413 U.S. 734, 742-743 (1973); Everson v. Board of Education, 330 U.S. at 16. 16 In this respect, the instant case is less troublesome than Mueller. In Mueller, the evidence suggested that the “bulk” of the benefits involved would flow to religious uses, partly because 96% of the children in private schools attended religiously-affiliated institutions. 463 U.S. at 401. 26 dent irrespective of the type of school attended or the degree sought.” The effect of the rehabilitation pro- gram is precisely the same as its purpose: it pro- vides vocational training to handicapped persons to improve their job skills and self-reliance. There is no reason to assume that the benefit to religion from providing aid to otherwise eligible students for the ministry, to the extent there is any benefit, is other than minor and incidental. This Court has never used the analytical approach employed below to strike down the neutral provision of benefits to a wide spectrum of beneficiaries. Rather, the Court has used the opposite approach— to examine the challenged “effects” in the context of the wider program.” See, e.g., Mueller vy. Allen, 463 U.S. at 397-399 (tax deduction statute available to all parents of schoolchildren, including those with children attending sectarian private schools) ; Widmar v. Vincent, supra (access to university facilities by all student groups, including religious groups) ; Tilton v. Richardson, 403 U.S. at 687 (construction grants for higher education facilities generally); Walz v. Tax Commission, supra (tax exemptions for all edu- cational and charitable non-profit institutions) ; Board of Education v. Allen, 392 U.S. at 242 (textbook loans to all schoolchildren) ; Everson v. Board of Edu- 17 The court below relied for its approach on a statement in Hunt v. McNair, 413 U.S. at 742, that under the “effects” inquiry a court must “narrow [its] focus from the statute as a whole to the only transaction presently before us.” See Pet. App. A8. However, in Hunt, the Court upheld the program even on that narrow basis, making it unnecessary to consider alternative bases for a finding of constitutionality. The deci- sion there provides no warrant for invalidating a program where, under the full context of the program, the “primary effect” is not to advance or inhibit religion. 27 cation, 330 U.S. at 16 (bus fare extended to all school- children). In any of these instances, the Washington Supreme Court’s analysis would have led to invalida- tion of the program. The State’s vocational rehabilitation program in- volved in this case has all the traditional indicia of a secular government assistance program with a sec- ular primary effect. The program is neutrally de- signed to provide aid to all persons who fall within the class of beneficiaries—the visually handicapped. Contrary to the Washington Supreme Court’s view, a program that assists a broad class of beneficiaries without regard to religion does not violate the Estab- lishment Clause merely because one, some, or even many of the beneficiaries happen to be religious. “The historic purposes of the [Establishment Clause] sim- ply do not encompass th[is] sort of attenuated finan- cial benefit [to religion], ultimately controlled by the private choices of individual” beneficiaries. Mueller v. Allen, 463 U.S. at 400. D. This Court Need Not, And Should Not, Consider The Remaining Issues In The Case The sole basis for the decision below was the Es- tablishment Clause of the First Amendment. This rationale had not been advanced by respondent be- fore the Washington Supreme Court or at any other stage in the litigation. The theory most vigorously pressed by respondent was that the provision of aid to petitioner for his education for the ministry would violate the State’s equivalents to the Establishment Clause, Wash. Rev. Code Ann. art. 1, § 11; art. 9, § 4 (1966). The court below found it “unnecessary to address the constitutionality of the aid under our state constitution” (Pet. App. A2). The court did, 28 however, strongly hint that it would find the aid un- constitutional under the state constitution, comment- ing that “our state constitution requires a far stricter separation of church and state tha[n] the federal constitution” (ibid.). If the state constitution is held to prohibit aid to petitioner’s education, that holding will raise serious and difficult questions of federal statutory and con- stitutional law, which have not been addressed by the lower courts. Specifically, it will raise the question whether petitioner is entitled to participate in the program under the terms of the federal grant to the State, and, if so, whether the State is permitted un- der the program to attach more stringent (and ar- guably discriminatory) eligibility criteria than those adopted by Congress and the Secretary of Education. See 29 U.S.C. 721(a)(5)(A). Moreover, assuming that there is no federal statutory bar to excluding petitioner from the program, such an interpretation of the state constitution would raise the question whether petitioner’s rights under the Equal Protec- tion Clause or the Free Exercise Clause would be in- fringed by a ruling that church-oriented careers alone are excluded from the benefits of the program. That question, not dissimilar to the issues raised in Board of Trustees v. McCreary, No. 84-277 (Mar. 27, 1985) (equally divided Court); Widmar v. Vincent, supra; McDaniel v. Paty, supra; and Sherbert v. Verner, 374 U.S. 398 (1963), is substantial, and the Supreme Court of the State of Washington should have an op- portunity to consider the question in the first in- stance. Although that court has considered, and re- jected, petitioner’s free exercise argument (Pet. App. A14-A17), it did so on the assumption that the Es- tablishment Clause would be violated by a grant of the vocational rehabilitation benefits. If there are no 29 countervailing federal constitutional considerations, the argument may appear in a different light. More- over, the court expressly declined to address peti- tioner’s “novel” equal protection claim because the Establishment Clause holding made resolution of that claim unnecessary (id. at A16-A17). There is no need for this Court to grapple with these issues in the current posture of the case, un- assisted by the views of the courts below. Although the Washington Supreme Court has adumbrated its likely answer to the question whether the state con- stitution would be violated by a grant for the support of petitioner’s vocational education, the court expressly declined to decide the issue in a formal sense. This Court should not address the sensitive question of the compatibility of a state’s constitution with the federal constitution in the absence of a definitive in- terpretation of the state constitution. Moreover, the state courts have not explained the basis and ration- ale for the state constitutional provision. It would therefore be difficult to evaluate whether the distinc- tions drawn by the State would pass muster under the Equal Protection Clause or be sufficiently com- pelling to outweigh petitioner’s free exercise rights. Accordingly, we urge the Court to confine its con- sideration to the Establishment Clause holding of the court below, and allow the parties to raise any other issues on remand, if the judgment is reversed. 30 CONCLUSION The judgment of the Supreme Court of the State of Washington should be reversed. Respectfully submitted. CHARLES FRIED Acting Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General MICHAEL W. MCCONNELL Assistant to the Solicitor General ANTHONY J. STEIN MEYER MICHAEL JAY SINGER Attorneys JUNE 1985 Uv. S&S. GOVERNMENT PRINTING OFrice; 1985 461531 10237 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0164%3A08. Public record. Not legal advice.