The Department of Justice today filed a friend-of-the-court brief in the United States Court of Appeals for the First Circuit, explaining that a Maine law that bans religious schools from the state’s school tuition program violates the First Amendment of the United States Constitution. 

The majority of Maine’s school districts do not operate their own high schools.  Instead, those school districts may either contract with another school to educate their resident high school students, or they may pay tuition to the private high school of the parent’s choice—but only if the high school is not religious in nature.  The plaintiffs in this case, Carson v. Makin, all live in school districts that do not operate their own high schools and either send their children to a religious high school at their own expense, or would like to send their children to a religious high school but cannot afford to do so.  They sued the Commissioner of Maine’s Department of Education, claiming that Maine law violates the United States Constitution.

“Our Constitution guarantees that all people in our nation may exercise their religion free from discrimination by the government,” said Assistant Attorney General Eric Dreiband for the Civil Rights Division.  “The First Amendment’s religious freedom protections are especially important for families and children, and the Department of Justice is committed to ensuring that all children may participate equally in educational programs without discrimination because of their religion.”

On June 26, 2019, the United States District Court for the District of Maine held that it was bound by First Circuit precedent from 2004 to uphold Maine’s religious-school ban, but it noted that the Supreme Court’s 2017 decision in Trinity Lutheran Church of Columbia v. Comer might cause the First Circuit to reassess its prior precedent.

In Trinity Lutheran, the Supreme Court held that “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion,” and may only be justified by the most compelling governmental interests.  In its friend-of-the-court brief, the United States explains that Trinity Lutheran obligates the Court of Appeals to reassess the constitutionality of Maine’s religious-school ban.  Because Maine “prohibits religious schools, simply because of their religious character, from receiving funds available to the rest of the community,” the United States’ brief explains, the state’s tuition program imposes “special disabilities on religious adherents on the basis of their religious status,” and thus violates the Constitution’s Free Exercise Clause.  The United States raised similar arguments in a brief it filed with the United States Supreme Court last month in Espinoza v. Montana Department of Revenue, which concerns a similar religious-school ban in a Montana scholarship program.

In July 2018, the Department of Justice announced the formation of the Religious Liberty Task Force.  The Task Force brings together Department components to coordinate their work on religious liberty

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