By Lindsay Tice,Staff Writer

AUGUSTA – Maine is discriminating against its own people when it refuses to let towns pay for students to attend religious schools, a lawyer for eight area families told the Maine Supreme Judicial Court on Tuesday.

The state argued that it isn’t violating anyone’s rights just because it doesn’t want to become entangled in religious education.

The court could take months to decide who is right.

At issue is a 25-year-old state law that prohibits towns from paying for religious school tuition, even if those towns have no schools of their own and routinely pay for students to attend other private schools. The Institute for Justice, a Washington-based law firm, filed the original lawsuit 3½ years ago on behalf of six families, saying the state’s refusal to pay for religious schools violated their right to free exercise of religion. Since then, two other families joined the suit. All are from Minot, Durham or Raymond, towns that have no high schools.

A lower court has ruled in the state’s favor. It said the U.S. Supreme Court ruling that brought on the lawsuit allowed states to pay for religious schooling but did not force them to against their will.

Deputy Attorney General Paul Stern renewed that argument Tuesday, adding that Maine didn’t want to pay for religious schools because it would become too involved in religious education.

“They just want the court to ignore that,” Stern said.

But Dick Komer, a lawyer for the Institute for Justice, said the state used to pay for religious school tuition before the 1981 law prohibited it, and there were no problems separating church and state then. Since religious schools already meet Maine education requirements and parents would choose the school – not the state – he said Maine wouldn’t be entangled in religious education today either.

“It’s a program of direct assistance to families to provide them their right to a state assisted K-12 education,” he said.

Six judges heard the arguments, often asking about precedents and possible state/religious entanglements.

Afterward, neither side felt certain how the judges would rule. But family members remained hopeful.

Beth Daniels, a Durham resident, is not Catholic but sent her son to St. Dominic’s Regional High School in Auburn until he graduated last year. St. Dom’s was the best school for her son, she said, and the state and town should have supported that.

“We’re paying taxes for everybody else’s child but my child can’t get the benefit,” she said.

This is the second time the case has appeared before the court. The state Supreme Court first heard arguments last March, but it recently asked the two sides to deliver them again. Although the court didn’t explain the need for another hearing, a new justice did join in 2005 and it’s not unusual for the court to hear a case again after a new justice arrives, according to a spokeswoman for the Institute for Justice.

The ruling could affect thousands of people. About 6,700 Maine students receive public money to attend schools outside their towns, not including students who need special education. In Maine, 171 school systems have no high school, while 59 have no school at all, according to the Maine Department of Education.

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