A lawyer for three Maine families challenging the state’s ban on public funding for religious schools sees the addition of Amy Coney Barrett to the U.S. Supreme Court as a reason for optimism after judges in two lower courts ruled against his clients.
There’s “a strong likelihood” the nation’s highest court will hear the case after the appellate court in Boston upheld Maine’s law last month, said Tim Keller, a lawyer with the Institute for Justice in Mesa, Arizona. And there’s even reason to believe the court will hear arguments in the case sooner rather than later.
As many as six justices could join a majority to find Maine’s law unconstitutional, he said, after Barrett joined the court, replacing the late Justice Ruth Bader Ginsburg and giving the court a six-justice conservative majority that’s more likely to privilege religion’s position in society.
While Barrett’s appointment to the court has given religious groups some hope for favorable rulings, Keller said, “it’s hard to predict how she would decide this issue.”
The Maine case challenges a state law under which towns without public high schools pay tuition so students can attend a public or private school of their choice in another community as long as it’s not a religious school.
In 2018, three families who live in Orrington, Glenburn and Palermo sued the Maine Department of Education in federal court in Bangor seeking tuition for their children to attend Bangor Christian Schools and Temple Academy in Waterville.
U.S. District Judge D. Brock Hornby rejected the plaintiffs’ argument in June 2019, shortly after the U.S. Department of Justice, under the Trump administration, intervened on the families’ behalf.
The families then appealed to the 1st U.S. Circuit Court of Appeals in Boston. But before a three-judge panel could rule on the case, the nation’s high court in June ruled 5-4 that a Montana program that makes donors to private school scholarships eligible for up to $150 in state tax credits, but prohibited the use of the scholarships at religious schools, was unconstitutional.
The appellate judges in Boston agreed to consider how that case affected Maine’s tuition law, making it the first instance of another court issuing a decision applying the Supreme Court’s ruling in the Montana case.
They concluded on Oct. 29 that the state’s requirement that public money fund secular rather than religious education does not violate Mainers’ constitutional rights.
“There is no question that Maine may ensure that such a public education is a secular one, just as there is no question that the Free Exercise Clause ensures that Mainers, like all Americans, are free to opt for a religious education for their children if they wish,” Judge David Barron, a Barack Obama appointee, wrote for the court.
The panel also included Judge Bruce Selya, a Ronald Reagan appointee, and retired U.S. Supreme Court Justice David Souter, appointed by George H.W. Bush.
Keller said the three-judge panel misapplied the Montana ruling, making it more likely that the Supreme Court will hear the case even before there are conflicting decisions from other circuit courts, which the court often waits for before accepting a case.
Keller has until March 29 to file his appellate brief with the U.S. Supreme Court. He said he expected to file before then. A decision on whether to hear oral arguments could be made this spring or summer, but the earliest the case would be heard is fall 2021.
Dmitry Bam, vice dean and provost of the University of Maine School of Law in Portland, was not as confident as Keller that the Supreme Court would take up the case before there are competing decisions from other circuits but said “it’s likely the court will take it on” at some point.
He disagreed with Keller’s prediction that six justices would side with the families.
“It’s not clear that there are five votes to overturn the 1st Circuit’s decision,” Bam said.
The justices could wait until pending cases challenging state bans on religious school funding in Vermont and New Hampshire are decided before weighing in.
The appeals court in the Vermont case already has granted an injunction to stop that state from excluding some high school students who attend religious schools from taking college classes through a dual enrollment program while that appeal is pending.
The Maine Attorney General’s office, which is defending the education department, declined to comment on the likelihood of the U.S. Supreme Court taking up the case or how the justices might rule if it does.
The Justice Department is unlikely to remain involved in the case once Democrat Joe Biden is sworn in as president.