Civil liberties groups, religious organizations and public school groups have filed friend-of-the-court briefs that support a decades-old state law that bars tuition reimbursement for attending religious schools.

Angela and Troy Nelson pose in August 2018 with their children, Royce and Alicia, at their home in Palermo. They are one of three families that are suing the state over its rule against reimbursement for religious school tuition. Joe Phelan/Kennebec Journal

That law is under challenge in a federal appeals court, and the case has attracted attention from national groups on both sides of the issue. The court has not yet scheduled oral arguments.

“Courts have now ruled four times that Maine’s decision to keep religious training out of the taxpayer-funded tuition program is constitutional,” Zachary Heiden, legal director at the American Civil Liberties Union of Maine, said in a written statement. “It would be devastating to religious freedom to reverse course now.”

Three Maine families filed their complaint last year against the Maine Department of Education in U.S. District Court in Bangor. Local school administrative units that do not have their own secondary schools can pay a certain amount in tuition for students to attend outside public or private schools. But under Maine law that money cannot be used at religious schools.

The plaintiffs say that provision violates the First Amendment’s protections of religious freedom, while the state says the schools in question cannot receive public funds because they discriminate against students and staff based on gender identity and sexual orientation.

A federal judge heard oral arguments in June and quickly issued a ruling that upheld the law. But he did not issue a definitive opinion about a central argument in the lawsuit, saying that will be decided by higher courts.


“It has always been apparent that, whatever my decision, this case is destined to go to the First Circuit on appeal, maybe even to the Supreme Court,” District Judge D. Brock Hornby wrote. “I congratulate (the parties) on their written and oral arguments in this court. I hope that the rehearsal has given them good preparation for the First Circuit (and maybe even higher).”

The parties and their supporters are now in the process of filing written briefs to the 1st U.S. Circuit Court of Appeals in Boston.

The ACLU of Maine filed its brief Wednesday that was joined by the national ACLU, Americans United for Separation of Church and State, the Anti-Defamation League, Central Conference of American Rabbis, Hindu American Foundation, Interfaith Alliance Foundation and others.

Another amicus brief came Wednesday from the Maine School Board Association and the Maine Superintendents Association.

“Plaintiffs want to hijack Maine’s tuition law, which is intended only to fund public education provided by public schools or approved private schools, to force Maine taxpayers to fund religious education of their children,” that brief said. “Such extension of public funding to religious education is not required by the constitution, and it will divert scarce public resources from Maine’s public education.”

National and state groups, including the Maine Heritage Policy Center and the U.S. Department of Justice, have already filed their briefs in support of the plaintiffs.

“That discriminatory restriction is odious to our Constitution and it cannot stand,” the Justice brief said.

The plaintiffs – David and Amy Carson, Alan and Judith Gillis, and Troy and Angela Nelson – said in their complaint that they all live in Maine 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.

Those families are represented by two national groups that advocate for religious liberty and school choice. One of those groups is the Virginia-based Institute for Justice, which has previously challenged the law and failed twice. They decided to try again in light of a U.S. Supreme Court ruling last year. In that case, Trinity Lutheran Church in Missouri was barred from participating in a state program that reimburses the cost of rubberizing playground surfaces. The nation’s highest court ultimately decided the church should be eligible for that public funding.

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