A federal appeals court ruled in late October that a Maine law that excludes religious schools from a private school aid plan is legal.

In Maine, some rural areas lack public high schools. In those cases, residents are permitted to send their children to private secular schools at taxpayer expense. Several families who wanted to send their children to Christian schools sued, arguing that the restriction violates their religious freedom. They were represented in court by the Institute for Justice, a pro-voucher group.

The 1st U.S. Circuit Court of Appeals ruled 3-0 that Maine’s policy is legal. Judge David Barron wrote that Maine’s program is designed to ensure that students receive an education that is equivalent to what they would get in a public school. In that case, the education would be secular.

Barron also pointed out that the private religious schools in question are designed to impart sectarian views.

Maine, Barron observed, puts the focus on “what the school teaches through its curriculum and related activities, and how the material is presented.”

He added, “Sectarian schools are denied funds not because of who they are but because of what they would do with the money – use it to further the religious purposes of inculcation and proselytization.”

Barron also wrote that “nothing … suggests that the government penalizes a fundamental right simply because it declines to subsidize it.” 

The three-judge panel also included former Supreme Court Justice David H. Souter, sitting by special designation.

Americans United filed a friend-of-the-court brief in the Carson v. Makin case, arguing that Maine’s policy should be upheld.

The Institute for Justice has vowed to appeal the ruling to the U.S. Supreme Court.

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