Editor’s note: On July 25, the Institute for Justice, representing eight families from Durham, Minot and Raymond, filed an appeal of the Maine high court’s ruling to the U.S. Supreme Court.
PORTLAND, Maine — Maine's highest court yesterday upheld — once again — a state law banning state funding of religious schools.
The Maine Supreme Judicial Court ruled that restrictions on tuition vouchers continue to be a "valid, constitutional enactment." Justice Robert Clifford dissented, saying a 2002 U.S. Supreme Court ruling invalidated Maine's law.
Yesterday's ruling in Anderson v. Town of Durham marked the second time in a decade that the state high court has upheld a 1983 law, which bans tuition vouchers from being paid to parochial schools.
The lawsuit was brought by a legal advocacy group on behalf of eight families from Durham, Minot and Raymond who sought to use the public funding to send their children to St. Dominic Regional High School, Union Springs Academy and Pine Tree Academy.
It was similar to a 1997 lawsuit brought by five Raymond families who wanted the state to pay for their children's tuition at Cheverus High School, a Roman Catholic school in Portland.
"Obviously we're very disappointed and we're considering whether there are any other steps we can take," including an appeal to the U.S. Supreme Court, said Richard Komer of the Washington-based Institute for Justice, which brought the suit.
Komer maintained that the 2002 U.S. Supreme Court decision upholding a voucher program in Cleveland, Zelman v. Simmons-Harris, removed the underpinnings for the Maine high court's earlier ruling.
While upholding the current law, the state court left open the door that the U.S. Supreme Court ruling gives Maine lawmakers enough leeway to reverse course if they chose to do so. The Legislature refused to do so when it last addressed the issue in 2003.
An estimated 17,000 Maine students from 145 small towns with no high schools are subject to the voucher program. Towns are allowed to pay for those students to attend a public or a private school, so long as it's not a parochial school.
Before 1980, Maine's tuition statute permitted payment of public funds to approved religious schools. But that ended with an advisory opinion by the attorney general that the practice violated the First Amendment's establishment clause. The current practice began in 1981, and the Maine Legislature made it law in 1983.
However, the U.S. Supreme Court found that Ohio's decision to allow public funding for Cleveland students to attend a religious school did not violate the establishment clause. Later, the 1st Circuit Court of Appeals in Boston validated Maine's law despite the Supreme Court's ruling.
Yesterday, the Maine Supreme Judicial Court ruled that it is both legal to allow school voucher funding for religious schools and that it is also legal, as the state Legislature did, to ban the use of public funds for religious schools.
In this case, the Legislature chose to ban tuition subsidies for students attending religious schools to avoid "excessive entanglement between religion and state," wrote Justice Donald Alexander for the court's majority.
But Clifford disagreed. He said the entire basis for the state's decision to ban tuition vouchers for religious schools was based on the establishment clause, and that reasoning was struck down by the U.S. Supreme Court.
Thus, the state should treat all private schools — religious or not — the same to avoid discriminating against religious schools, he said.
"I agree that the state is not required to provide tuition aid to parents who wish to send their children to nonpublic schools. If it does provide such aid, however, it should not be able to exclude private schools that also happen to have a religious affiliation," Clifford wrote.
The Maine Civil Liberties Union praised the court's majority for upholding the ban on taxpayer dollars going to religious schools.
"The Maine Legislature's decision not to fund religious education has been based on an awareness that government interference in religion could lead to real problems," said MCLU lawyer Jeffrey Thaler.
One of the plaintiffs, Jill Guay of Minot, expressed disappointment at the outcome but said she was not surprised. "We had an idea it would go that way," she said.
Guay, who has a daughter entering St. Dominic Regional High School next year, questioned whether the Legislature might change its stance in light of the latest ruling.
"The state has made it pretty obvious that it is going to discriminate against families that choose religious schools over public schools," she said.