Optimistic families Supreme Court to overturn Maine ban on funding religious schools

A lawyer for three Maine families challenging the state’s ban on public funding of religious schools sees the addition of Amy Coney Barrett to the U.S. Supreme Court as cause for optimism after justices of two lower courts have ruled against its clients.

There is “a high probability” that the nation’s highest court will hear the case after the Boston appeals court upheld Maine’s law last month, said Tim Keller, lawyer at the Institute for Justice of Mesa, Arizona. And there is even reason to believe that the court will hear the arguments of the case as soon as possible.

Up to six judges could join a majority to declare Maine’s law unconstitutional, he said, after Barrett joined the court, replacing late judge Ruth Bader Ginsburg and giving the court a Conservative majority of six judges. who is more likely to favor the position of religion in society.

While Barrett’s appointment to the court gave religious groups some hope for favorable rulings, Keller said: “It is difficult to predict how she would decide on this issue.”

The Maine case challenges a state law under which cities without public high schools pay tuition fees so that students can attend a public or private school of their choice in another community as long as they do not. it is not a religious school.

In 2018, three families living in Orrington, Glenburn and Palermo sued the Maine Department of Education in federal court in Bangor asking their children to attend Christian Schools in Bangor and Temple Academy in Waterville.

U.S. District Judge D. Brock Hornby dismissed the plaintiffs’ argument in June 2019, shortly after the U.S. Department of Justice under the Trump administration intervened on behalf of the families.

The families then appealed to the 1st United States Court of Appeals in Boston. But before a three-judge panel could rule on the case, the country’s High Court in June 5-4 ruled that a Montana program that makes private scholarship donors eligible for up to $ 150 in state tax credits, but banned the use of scholarships in religious schools, was unconstitutional.

Boston appeals justices agreed to examine how this case affected Maine’s tuition fee law, making it the first instance of another court to issue a decision implementing the Supreme Court ruling in the Montana case.

They concluded on October 29 that the state’s requirement that public funds fund secular rather than religious education does not violate Mainers’ constitutional rights.

“There is no doubt that Maine can guarantee that such public education is secular, just as there is no doubt that the free practice clause ensures that Mainers, like all Americans, are free to choose. religious education for their children if they wish, ” Judge David Barron, appointed by Barack Obama, wrote for the tribunal.

The panel also included Justice Bruce Selya, appointed by Ronald Reagan, and retired United States Supreme Court Justice David Souter, appointed by George HW Bush.

Keller said the three-judge panel misapplied the Montana ruling, making it more likely that the Supreme Court would hear the case before there were even conflicting rulings from other circuit courts, than the court often waits before accepting a case.

Keller has until March 29 to file his appeal with the United States Supreme Court. He said he expected to file before that date. The decision on whether or not to hear oral argument could be made this spring or summer, but the case would be heard no earlier than fall 2021.

Dmitry Bam, associate dean and rector of the University of Maine at Portland Law School, was not as convinced as Keller that the Supreme Court would hear the case before there were competing rulings of ‘other circuits, but said “it is likely that the court will take on” at some point.

He disagreed with Keller’s prediction that six judges would be on the side of the families.

“It is not clear that there are five votes to overturn the decision of the 1st Circuit,” Bam said.

Judges could wait until pending cases challenging state bans on funding for religious schools in Vermont and New Hampshire are decided before ruling.

The court of appeals in the Vermont case has already granted an injunction to prevent that state from excluding certain high school students who attend religious schools from taking college courses under a dual enrollment program while that state. appeal is pending.

The Maine attorney general’s office, which defends the Department of Education, declined to comment on the likelihood of the U.S. Supreme Court taking over the case or how judges might rule if it did.

The Justice Department is unlikely to remain involved in the case once Democrat Joe Biden is sworn in as president.


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