Olivia Carson, 15, of Glenburn was dropped off by her mother, Amy Carson, on Aug. 28, 2018, the first day of her sophomore year at Bangor Christian Schools. The Carsons are one of three Maine families that are challenging the state’s ban on using public money to pay tuition at religious schools. A U.S. Supreme Court decision issued Tuesday says states can’t cut religious schools out of programs that send public money to private education. Maine and Vermont, which have private education programs, could see quick efforts to force them to allow religious schools to participate. Gabor Degre/Bangor Daily News via AP

The lawyers for three Maine families who are suing the state in federal court over a law that prohibits public funds from being used for tuition at religious schools said a U.S. Supreme Court decision Tuesday sets precedent in their favor.

The 5-4 decision involved a Montana law that offers income tax credits for those who donate to private schools, including religious institutions. The Supreme Court overturned as discriminatory a lower court ruling that the credits could not be granted for religious schools.

Tim Keller, an attorney with the Institute for Justice, is representing the three Maine families in their appeal of a ruling by U.S. District Judge D. Brock Hornby that upheld a state law restricting the use of taxpayer funds for tuition to religious schools. Keller said the new Supreme Court decision should prompt the 1st U.S. Circuit Court of Appeals to side with his clients and rule that Maine’s law is in violation of the U.S. Constitution.

The Montana case, Espinoza v. Montana Department of Revenue, was also brought by the Institute for Justice on behalf of families there. Keller filed documents Tuesday to bring the Montana decision to the appeals court’s attention in the Maine case.

“The decision in Espinoza means that Maine’s exclusion of sectarian schools must be struck down,” Keller said in a statement.

But Maine Attorney General Aaron Frey said he remains confident Maine’s law will be upheld, because the issues in the case differ from those in Montana.

At the heart of the Maine case is a 1981 state law that requires towns in school districts with no public high schools to pay a share of the tuition for students to private high schools, but it bars those payments from going to religious schools.

“Excluding religious schools from the array of options open to Maine parents who receive the tuition benefit, simply because they are religious schools, is now clearly unconstitutional,” Keller said.

The Maine lawsuit involves three families: Angela and Troy Nelson of Palermo, who have sought the tuition benefit to send their daughter to Temple Academy in Waterville; Judy and Alan Gillis of Orrington, whose youngest daughter just graduated from Bangor Christian Schools; and David and Amy Carson of Glenburn, who also have a daughter who has attended Bangor Christian.

Alan Gillis said he was encouraged by the Supreme Court decision and hopes the appeals court in Boston will follow suit and overturn Hornby’s ruling from June 2019.

Gillis said although his daughter has already graduated, the suit is important on principle.

“We didn’t undertake this for the money,” Gillis said, adding that he has several grandchildren in Maine who would also likely attend Christian schools. He said Bangor Christian is fully accredited by the state, and the diploma his daughter recently received is as valid as that of any public school in Maine, yet the school was denied public funds because of its religious affiliation.

Gillis said he was not an attorney, but what he gathered from the Supreme Court’s majority opinion, written by Chief Justice John Roberts, was that while states do not have to pay for private school tuition, if they create laws to do so, they cannot then discriminate against private schools with religious affiliations.

In their original complaint, the Maine families pointed to a 2017 U.S. Supreme Court case about whether a state could bar a church preschool from a public program that paid to rubberize playground surfaces. In that case, the justices decided in favor of the church, but with the distinction that their decision did not address religious uses for funding.

Hornby said that case did not clearly upend case law that bars public money from going to religious education, and that the appeals court would need to address that issue. Hornby also cited the Maine Human Rights Act, which prohibits religious groups from receiving public money if they maintain a discriminatory hiring policy against LGBTQ people. Both Bangor Christian and Temple Academy do so, according to court documents.

Frey, the Maine attorney general, said the issue in Montana was a provision in its constitution that broadly bars government aid to schools run by religious organizations.

“Maine, on the other hand, has chosen to operate a secular public education system, and all non-sectarian schools, regardless of who operates them, are eligible for inclusion,” Frey said in a statement. “The court’s decision in Espinoza does not mean that Maine must now include sectarian schools in its public education system.”

Maine has a historical connection to the church and state issue, rooted in the efforts of James G. Blaine, a Republican for whom the governor’s mansion is named and who served in Congress and twice as U.S. Secretary of State in the late 1800s.

In 1875, Blaine, who ran for president in 1884 but lost narrowly to Democrat Grover Cleveland, came close to getting an amendment passed to the U.S. Constitution that would have clearly prohibited the use of public funds and public lands for religious purposes, including funding private religious schools.  Eventually, all but 10 states, including Maine, passed amendments to their state constitutions barring the use of public funds by religious schools.

Those amendments have been commonly referred to as “Blaine amendments” by legal scholars and litigators.

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