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School voucher limits upheld
Again, Maine's high court validates state law banning the use of public money for tuition to religious schools
Portland Press Herald
Gregory D. Kesich
04/28/06

The Maine Supreme Judicial Court upheld a controversial state law Wednesday that prohibits parents from using publicly funded tuition vouchers for religious schools.

Writing for the majority in the 6-1 decision, Justice Donald Alexander concluded that the state is not compelled to pay for religious education, even though the U.S. Supreme Court has ruled that similar programs are constitutionally permissible.

Alexander wrote that the state can deny access to the funds because it has an interest in avoiding excessive entanglement with religious institutions.

The decision ends, for now, litigation that has moved through Maine and federal courts for almost a decade. Almost identical cases were decided by Maine's high court in 1999, and the 1st District Court of Appeals in 2004.

The new lawsuit was filed in 2003 on behalf of families from Minot, Raymond and Durham by school-choice advocates. They argued that a pair of U.S. Supreme Court decisions had altered the interpretation of the U.S. Constitution's religious protections.

A volunteer attorney for the Maine Civil Liberties Union, which has supported the state law throughout the series of court cases, said this decision should resolve the issue.

"This decision is much more broadly based and firmly grounded (than the 1999 decision,)" said Jeffrey Thaler of Bernstein, Shur, Sawyer & Nelson. "I don't see any room here where they could put together another one of these."

A lawyer for the Institute of Justice, the Virginia-based public interest law firm that represented the families in both cases, issued a statement expressing disappointment with the ruling. The group will review its legal options, which include appealing the case to the U.S. Supreme Court.

"It's an incredibly unfortunate day when a state supreme court upholds blatant discrimination against parents simply because the school they deem best for their children is a religious school," said Richard Komer.

At issue is a tuition program that is offered in some Maine towns that do not have their own high schools.

Residents in those towns are offered vouchers to use at any school, public or private, as long as it is not religiously affiliated. In 1999, the state Supreme Court ruled that allowing vouchers to be used for religious schools would violate the U.S. Constitution, which prohibits the establishment of a state religion.

But the U.S. Supreme Court subsequently found constitutional a school voucher program in Cleveland that included religious schools. The court found that program permissible because it had a secular purpose and the decision of where to spend the money was made by parents, not the government.

Later, the 1st Circuit Court of Appeals in Boston validated Maine's law despite that ruling.

In 2004, the U.S. Supreme Court decided another religious education case, upholding a Washington state college scholarship program that denied public funds to a theology student. In that ruling, the court found that funding for religious schools can be denied if the state has a "rational basis" that is not discrimination.

In the latest Maine decision, Alexander wrote that Maine's statute is not affected by the two federal decisions. The Cleveland case does not require states to support religious schools, but permits that support, Alexander wrote. And the Washington case laid out the circumstances under which it can be denied.

In this case, Alexander wrote, the state has an interest in preventing the entanglement of government and religion that would come if public funds were offered to religious institutions.

"The state does not infringe upon the fundamental right of free exercise of religion in a constitutionality significant manner," he wrote. "The state has supplied a reasonably conceivable set of facts that establish a rational relationship between the statute and a legitimate government interest in avoiding excessive entanglements with religion."

Just as he was in 1999, Justice Robert Clifford was the lone vote against latest ruling. In a dissenting opinion, Clifford wrote that if Maine provides tuition money for some private schools, it should provide it for all of them.

"In my view, that is blatant discrimination that reflects not a neutrality toward religion, but rather an animus against religion," he wrote.

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