Equal Protection and Religious Schools in Maine

According to uber-lawblogger Howard Bashman the First Circuit just ruled, in Eulitt v. Maine, that the Equal Protection Clause does not require Maine to pay toward the tuition of students attending "sectarian" schools, even though the State does contribute toward the tuition of students attending private, "non-sectarian" schools. In a nutshell, the
First Circuit's old decision in Strout (also concerning Maine's "tuitioning" program) is still basically right, notwithstanding the Supreme Court's intervening decisions in Zelman and Davey.

Here is the opinion.

I apologize in advance for the "inside baseball" nature of these observations. That said, I think it is fair to say that Judge Selya embraced a broad reading of Davey's "play in the joints" idea. Although I had thought that the Chief Justice's opinion in that case took care to emphasize that Washington State *did* permit religious schools to participate in the education-funding program at issue there -- and simply excluded a particular course of study (for the ministry) -- Judge Selya said that Davey "recognized that state entities, in choosing how to provide education, may act upon their legitimate concerns about excessive entanglement with religion, even thought the Establishment Clause may not require them to do so." Again, I had read Davey as focusing not on "concerns about excessive entanglement" generally, but on a specific set of concerns -- with deep historical roots -- about funding the training of clergy.

Judge Selya also read, in my view, the Lukumi case quite narrowly. In his view, that decision is about (and only about) discriminatory laws that are motivated by "animus"; a law that treats religion differently -- or, that discriminates against religion -- but that is not obviously motivated by animus, is not, on Judge Selya's reading, vulnerable under the Free Exercise Clause. (The court did not take up the question whether -- as I believe -- exclusions like this were, as a historical matter, motivated by "animus" against Catholic education).

In any event, it appears that I and many others were mistaken in thinking that Davey would not undermine the argument that a school-voucher program that excluded religious schools (but not other private schools) is unconstitutional. So, for those who have not been following these cases closely, here's the bottom line: If Judge Selya's understanding of Locke v. Davey is validated and embraced by other courts, much of the promise for religious freedom and education reform of recent Religion Clause and Free Speech decisions by the Supreme Court will evaporate. At bottom, Selya's claim is that a majority's "anti-establishment interest" -- it's desire not to treat equally religious institutions and expression -- trumps the equal-treatment and free-exercise rights of religious institutions and believers, even if the State's understanding of "disestablishment" is idiosyncratic or overly restrictive. We'll see . . .

Rick