Legal experts believe Maine is doomed to lose its religious school funding case

Legal experts have predicted the U.S. Supreme Court will find Maine’s ban on public funding of religious schools violates the U.S. Constitution after oral arguments before the justices on Wednesday.

Maine Attorney General Aaron Frey said the state “has made a compelling case for the constitutionality of Maine’s public education system,” but did not predict how the court will rule next year. .

The case, originally filed in federal court in Bangor in 2018, challenges a state law under which towns without public high schools pay tuition so local students can attend a public or private school of their choice. in another community as long as it is not a religious school. .

The lawsuit, brought by two groups of parents, David and Amy Carson of Glenburn and Troy and Angela Nelson of Palermo, sought public tuition fees for their children to attend Christian Schools in Bangor and Temple Academy in Waterville, respectively.

A Maine federal judge ruled for the state in June 2019, and the 1st United States Circuit Court of Appeals upheld his decision.

The legal question is whether Maine effectively prohibits public money from going to a school because of its religious status or because it would use the money to teach religion.

Carson v. Makin is one of the few Maine cases to have gone to the High Court. Court watchers said it could further define how a 6-3 Conservative majority views the separation of church and state.

Dmitry Bam, associate dean of the University of Maine School of Law, said after the arguments that the majority of the justices were skeptical of Maine’s arguments.

“To the conservative justices, this case was largely indistinguishable from previous cases upholding school choice programs, and they didn’t seem to give much weight to Maine’s distinction that it was really not than a narrow category of public funding for public education,” Bam said. .

It was clear that Justices Amy Coney Barrett and Brett Kavanaugh, both appointees of former President Donald Trump, viewed Maine’s tuition program as a school choice program, “not an outsourcing of the public education to private entities,” he said. “The court also seemed skeptical about the distinction between status and use, and I think they see this case as a ‘status’ issue rather than a ‘use’ issue.”

Matthew Gagnon, director of the Maine Policy Institute, a conservative think tank, called the state’s argument over status versus use “a distinction without difference.”

“Religious discrimination is religious discrimination,” he said. “The High Court has ruled that a state does not need to subsidize private education, but once it does it cannot disqualify certain schools just because they are religious. That is exactly discrimination that occurs in the Maine city school curriculum.

Zachary Heiden, staff attorney for the American Civil Liberties Union of Maine, agreed with Bam’s assessment that most judges were “skeptical” of the state’s position.

Heiden said the case was unusual compared to other religious school cases the court has considered because it was brought by parents and not by the schools themselves.

“There is no evidence that these schools want to participate in the [public funding] program,” he said.

That would minimize the impact of a ruling that says the state must fund religious schools, according to Frey.

If Bangor Christian and Temple Academy were to accept public money in the future, they would have to comply with Maine’s human rights law, which prohibits refusing to hire someone because of their sexual orientation or of his gender identity, he said.

Under a series of changes to Maine’s human rights law that went into effect Oct. 18, religious schools that accept public funds are prohibited from discriminating against students and staff. LGBTQ, he said. If they accepted public money, they could not, for example, deny admission to a transgender student or refuse to hire a gay staff member.

“These schools want to continue to discriminate against individuals based on their status in a protected class and this is inconsistent with the protections given to all Mainers under the MHRA,” Frey said.

Amy Carson, a plaintiff in the case, said she was happy her family agreed to be part of the case, but was surprised how long it took to get to the state Supreme Court -United.

His daughter, Olivia, now 19, graduated from Bangor Christian Schools last spring.

As the court’s judges emerged clear in their leanings on Wednesday, “it’s never a good idea to jump to conclusions about how a case is going to come out based on oral arguments,” Heiden said.

“The case is more likely to be decided on the arguments of the briefs.”

A decision is not expected before the spring.

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