Maine’s constitution bars public funds from supporting religion, judge says

Tuesday, May 5, 1998

Another setback for supporters of voucher programs was issued by a Maine judge when she ruled that the state's constitution bars it from providing tax dollars for parents in rural areas to send their children to private religious schools.

Nancy Mills, a state judge, ruled last week that Maine's rural school-choice program — which gives public funds to families living in towns without public schools — is constitutionally sound, even though it bars the vouchers from being used at parochial schools.

The law was challenged last year by Cynthia and Robert Bagley after Raymond town officials refused to pay for their sons' tuition at an all-boys Catholic school. Four other Raymond families, also sending their children to the religious school, joined the Bagleys in filing a lawsuit. The suit alleged that the state law subverted their First Amendment right to freely exercise religion excluding religious schools from the voucher program.

Mills, however, ruled that the families' religious-liberty rights were not substantially infringed upon and that Maine's constitution prohibits taxpayer money from being funneled into parochial schools. Mills concluded that Raymond officials acted properly by denying the parents' request for financial assistance.

Raymond, about 20 miles from Portland, does not have a public high school. According to the Bagleys' attorneys, they were unhappy with one of their children's experiences in Raymond's elementary school. The Bagleys chose to send their children to the Catholic, all-boys Cheverus High School. The school, the Bagleys said, would give their sons a challenging academic experience as well as a chance to deepen their religious faith.

Before 1981 the state's rural school choice program included religious schools. The legislature excluded private religious schools from the law after the state's attorney general, Joseph Brennan, issued an advisory opinion that state-funded religious schooling subverted the First Amendment's principle of separation of church and state.

The Institute for Justice, a Washington, D.C.-based libertarian law firm that represents the Raymond families, contends the Maine law was altered to discriminate against religious people unconstitutionally.

“This law is not neutral,” Richard Komer, the Institute's senior litigator, said. “The legislature made the program discriminatory when it specifically said you can choose any school in Maine except religious ones.”

Komer added that Mills should not have questioned whether the current law substantially burdened the religious liberty-rights of the Raymond families.

“I think she fundamentally misunderstood the law on free-exercise issues,” he said. “This involves a line-drawing on the basis of religion and the substantial-burden test therefore does not apply.”

Mills, however, concluded that the law does not target the Bagleys' religious practices.

“The plaintiffs [Bagleys and other Raymond families] are free to send their sons to Cheverus,” Mills wrote. The law “provides only that public funds will not flow into the coffers of sectarian schools.”

Because Mills decided that the law did not target religion, the Bagleys had to show that the denial of state funds to help send their sons to the Catholic school substantially infringed on their right to freely exercise religion. Mills said the Bagleys or the other Raymond families failed to do so.

“The court agrees that the plaintiffs have not shown that sending their sons to Cheverus is mandated by their religion,” Mills wrote. “Even assuming that the Bagleys had raised an issue of material fact concerning their motivation for sending their sons to Cheverus, the state's failure to subsidize an education at Cheverus does not constitute a substantial burden on the exercise of religion.”

Colby May, director for the office of government affairs at the American Center for Law and Justice, a Washington, D.C.-based religious liberty law firm, also criticized the judge's decision as being insensitive to religious beliefs.

“The state judge is just flat-out being discriminatory toward religion and religious persons,” May said. “It is not like the money is going straight to the religious institutions, rather it is being given to the parents, who then choose — in the best interests of their children — where to send their children.”

Additionally, Mills stated that if Maine changed its law to allow tax dollars to pay tuition at sectarian schools, the establishment clause of the First Amendment would be violated “because the effect would be to subsidize and advance religion.”

Komer argued that as long as the parents are not pressured by the law to send their children to religious schools, then the establishment clause is not harmed.

“The judge took a very simplistic approach to the establishment clause by suggesting that if any financial benefit can go to a religious school, then the establishment clause is violated,” he said.

Mills cited a 1973 U.S. Supreme Court decision in support of her ruling. In Committee for Public Education v. Nyquist, the court ruled that New York and Pennsylvania laws that gave tax breaks to parents who sent their children to sectarian schools violated the establishment clause.

Both the laws provided reimbursement to parents for tuition paid at private schools-most of them Catholic. The court invalidated both laws, concluding that their effect was to advance religion.

Komer said Mills's decision would be appealed to the state's high court.

The Supreme Court has not ruled on voucher programs similar to Maine's or to those in Cleveland and Milwaukee. Komer's group is defending those voucher programs against attacks that they unconstitutionally provide public funds for religious schools. Attorneys for the group recently argued against a Vermont voucher program similar to Maine's in the state's high court. The decision is expected sometime before the end of summer.