Maine operates a program to ensure that students in school districts without a public school can still obtain a public education on equal footing with other students in the state. Under the program, if there is no public school in a given school district, the state will pay part of the cost for students in the district to attend an approved private or public school of the parents’ choice. The public funds may not be used at private schools that present a religious curriculum.
Backed by the pro-voucher group Institute for Justice, a group of parents sued the state over the program, alleging that it violates the Free Exercise Clause of the First Amendment for the state to refuse to fund private religious education when it funds private secular education. But while the Supreme Court has previously held, in Trinity Lutheran v. Comer and Espinoza v. Montana Department of Revenue, that excluding religious entities from certain public funding programs because of religious status is unconstitutional, the Religion Clauses have never been understood to require funding of religious activities such as religious education.
Quite the contrary: The founders recognized that barring government funding of religious education both protects individuals’ freedom of conscience and safeguards religion from government interference. Moreover, states should never be required to fund discriminatory practices based on religious belief, yet the schools in this litigation reject LGBTQ students and teachers and discriminate against non-Christian religious practices and beliefs.
Americans United filed amicus briefs in support of the law in both the district court and the U.S. Court of Appeals for the First Circuit, after unsuccessfully attempting to intervene in the district court on behalf of several Maine taxpayers. A federal district court and the U.S. Court of Appeals for the First Circuit both upheld Maine’s law. The Supreme Court then granted review of the case.
In the Supreme Court, Americans United, joined by twenty-three religious and civil-rights organizations, filed an amicus brief urging the Court to protect religious freedom and public education by affirming that Maine taxpayers are not required to fund religious education. The organizations explained that Maine’s policy of not providing government funding for private religious instruction is in line with long-standing Supreme Court precedent, and that a ruling against Maine would contradict the founding-era principle that no one should be required to fund religious teaching.
On June 21, 2022, ignoring our arguments, the Supreme Court ruled by a 6-3 vote that Maine cannot constitutionally exclude schools from its tuition-payment program on the ground that the education that they provide is religious. The Court did not address, however, whether states can exclude schools from such programs on the ground that the schools engage in discriminatory practices.
On remand, in April 2023, the trial court issued a judgment declaring the Maine policy at issue unconstitutional under the Free Exercise Clause and permanently enjoining the state from enforcing it. The state filed an appeal but then dismissed it, and the case is now closed.