Maine’s high court rules that state doesn’t have to fund religious education

Wednesday, April 28, 1999

Parents have a fundamental right to seek a religious education for their children, but that does not mean the government must pay for it, Maine's high court has ruled.

So far neither federal nor state courts in Maine have found any state obligation to provide financial support for parents who wish to send their children to sectarian schools. Two groups of families — both in rural areas — have challenged Maine's rural school-choice program as a violation of their religious liberties. The rural school-choice program provides funds enabling families in rural areas with no high school to send their children to private or public high schools elsewhere — except sectarian ones.

Last year a U.S. district judge, in Strout v. Commissioner, ruled against a group of families from Minot, Maine. The judge concluded that although the families had a First Amendment right to obtain a religious education for their children, they did not have a fundamental right “to require taxpayers to subsidize that choice.” The Minot families, represented by a conservative religious nonprofit group, have asked the 1st U.S. Circuit Court of Appeals to overturn that decision. The appeals court heard oral arguments earlier this year but has yet to rule.

Late last week, the Maine Judicial Supreme Court also ruled that the state's school-choice program did not have to include funds for religious schools. In 1997 a group of families in Raymond asked town officials to pay for their sons' tuition at an all-boys Catholic school. The officials refused, citing the school-choice law that excludes religious education. The Raymond families, represented by the Institute for Justice, a libertarian law firm based in Washington, D.C., argued that the state law violated their First Amendment right to freely exercise religion and that it subverted the establishment clause by discriminating against religion.

Like the lower state court, the Maine Supreme Court ruled that the rural school-choice program did not substantially burden the religious-liberty rights of the Raymond families and that the establishment clause did not require government to finance sectarian education as it does public education.

The rural school-choice law “does not prevent the parents from sending their sons to Cheverus (all-boys Catholic school),” Judge Leigh I. Saufley wrote for the majority in Bagley v. Raymond School Department. “While they will not receive tuition assistance if they choose to do so, they are no more impaired in their efforts to seek a religious education for their sons than are parents of children in school districts that provide only a free nonreligious education in public schools.”

Citing federal court precedent, Saufley concluded that the Raymond families misunderstood the meaning of the free-exercise clause.

“In sum, the Free Exercise Clause is 'designed to prevent the government from impermissibly burdening an individual's free exercise of religion, not to allow an individual to exact special treatment from the government,” Saufley wrote.

The majority also dismissed the Raymond families' argument that the program violated the establishment clause by excluding religious schools. The court said the families had “misplaced” their reliance on the establishment clause as a bar to excluding religious schools from the school-choice program.

“The dual concepts of the First Amendment's reference to religion are meant to address opposite concerns,” Saufley wrote. “The Free Exercise Clause addresses the negative, it prevents the government from interfering with religious practice, while the Establishment Clause addresses the affirmative, it prevents the government from sponsoring or establishing a religion.”

The establishment clause “has no role in requiring government assistance to make the practice of religion more available or easier,” Saufley wrote. “It simply does not speak to governmental actions that fail to support religion. Accordingly, we find no support for the proposition that the Establishment Clause prevents a state from refusing to fund religious schools.”

Matthew Berry, a staff attorney for the Institute for Justice, said that his group had not decided whether to appeal the Maine decision to the U.S. Supreme Court.

“We are, however, disappointed because the First Amendment does not compel government discrimination against religious schools,” Berry said. “We argued that religious and nonreligious schools must be treated equally under the Constitution.”

In this instance, Berry said that the Raymond families “are being punished for seeking to exercise their religious liberty.”

Barry Lynn, executive director of Americans United for Separation of Church and State, praised the Maine court ruling as a victory for public schools and church-state separation.

“Although the school is chosen by parents, not the State, choice alone cannot overcome the fact that the tuition program would directly pay religious schools for programs that include and advance religion,” Lynn said in a prepared statement. “None of the Supreme Court's decisions to date have ever intimated that such direct subsidies of religious schools could survive an Establishment Clause challenge.”