On Wednesday, the U.S. Supreme Court heard arguments in a lawsuit filed on behalf of some Maine families who want the state to pay for their children’s tuition at religious schools.

Sound familiar? It should.

In 1999, twin cases were filed in state and federal courts challenging Maine’s religious school exclusion and lost in both the Maine Supreme Judicial Court and the 1st Circuit Court of Appeals.

Then in 2004, a pair of cases was again filed in both state and federal court challenging the law and were again defeated.

The third attempt was filed in federal court last year, and it was defeated by the Court of Appeals, But this time, the case was accepted by the U.S. Supreme Court.

The families are different in every lawsuit, but some things don’t change.


The plaintiffs are typically represented by public interest law firms like the First Liberty Institute  which is dedicated to bringing down the American wall between church and state.

And over the years, the arguments they make don’t change. The plaintiffs say that Maine’s refusal to fund religious schools violates the families’ First Amendment right to freely practice their religion and their 14th Amendment right to equal protection. The two amendments are not new.

But one thing has changed: the composition of the Supreme Court. The addition of Justices Neil Gorsuch in 2017, Brett Kavanaugh in 2018 and Amy Coney Barrett in 2020 gives these advocates hope that they can fight the same law with the same arguments and get a completely different interpretation of the Constitution than they have received from multiple courts in the past.

The Maine Constitution promises every child an education at the taxpayers’ expense. In a state as big and sparsely populated as this one, fulfilling that promise can take many forms.

For a small number of towns that don’t have their own high school or a contract with one nearby, it means paying tuition for local students to attend the school of their choice, which can be public or private – as long as the private school is not religious.

For the last two decades, Maine has successfully argued that every person has a right to practice their religion without interference from the state, but that doesn’t mean that the state has to do anything more than get out of their way. If a religion dictates that its adherents attend special schools, paying for it is not the public’s responsibility. The courts have also found that the state fulfills its obligation to provide equal treatment to all when it offers everyone a publicly funded education. It doesn’t have to give some members of some religions taxpayer-funded religious instruction.

And what would Maine taxpayers be forced to support if the Supreme Court decides that all the other courts have been wrong? One winner would be Bangor Christian School, one of whose stated educational objectives is “to lead each unsaved student to trust Christ as his/her personal savior and then to follow Christ as Lord of his/her life.”

Another would be Temple Academy, in Waterville, with its “biblically-integrated education,” in which the Bible is used in every subject that is taught. Staff contracts warn “God recognize(s) homosexuals and other deviants as perverted” and that “such deviation from Scriptural standards is grounds for termination.”

There’s a place for such institutions in a pluralistic society. But they should not be getting public money, no matter who’s sitting on the Supreme Court.

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