Three families wishing to use public tuition from Maine’s school choice program to send their children to religious schools will have their case heard by the U.S. Supreme Court Dec. 8.

Carson v. Makin revolves around a Maine law that allows parents who live in towns that do not have public schools to receive public tuition to send their student to a public or private school of their choice — as long as they do not choose a religious school.

Institute for Justice, a libertarian nonprofit public interest law firm, is representing the families, who live in Orrington, Glenburn and Palermo. The Republican Journal sought an interview with the Palermo family, the Nelsons, but they declined. All three municipalities are tuitioning towns where the local school district offers high school tuition for students to attend public or private secondary schools of their choice.

In 2018, the parents filed a complaint in U.S. District Court for Maine alleging that the school choice program infringed on their First Amendment rights, including the free exercise of religion.

The district court ruled against the parents. When the families took their case to the U.S. Court of Appeals for the 1st Circuit last year, the court affirmed the lower court’s ruling. Undeterred, the families appealed to the high court and on July 2, the Supreme Court accepted the case.

While the families appealed their case, the Supreme Court ruled in a similar case, striking down restrictions in Montana’s school choice program under the First Amendment’s free exercise clause.

In Espinoza v. Montana, the court ruled that schools could not be barred from participating in a state scholarship program simply for having a religious affiliation, because it violated the right of parents to choose the best education for their children.

According to Arif Panju, co-counsel with Institute for Justice, who is representing the families, once parents are given the right to choose, they cannot be excluded if they choose a religious option, solely because it is sectarian. “That’s where you get into religious discrimination,” he said.

“Once you hand the baton to parents, and you don’t favor or disfavor religion, you just leave it up to parents, it’s not a violation of the establishment clause (which prohibits the establishment of a state religion by Congress),” Panju added.

The way Maine determines whether a parent’s choice of schools is permitted, he said, is to engage in an intrusive review of the school.

“The government can’t be in the business of making these determinations,  allowing government bureaucrats to determine whether schools are religious or not, and intrude into various aspects of the school.”

Panju said Maine has one of the oldest tuition programs in the country, dating back to 1873. Parents were allowed to choose a school for their children, public, private, sectarian or not, for over a century until 1980, when the state excluded religious schools because of the establishment clause.

In a prepared statement to The Journal, Maine Attorney General Aaron M. Frey said, “Religious schools are excluded because the education they provide is not equivalent to a public education. Religious schools can and do advance their own religion to the exclusion of all others, discriminate in both the teachers they employ and the students they admit, and teach religious views inimical to what is taught in public schools.

“Parents are free to send their children to such schools if they choose, but not with public dollars. I am confident that the Supreme Court will recognize that nothing in the Constitution requires Maine to include religious schools in its public education system.”

Amy Carson and her husband, Dave, live in Glenburn and are among the three sets of parents appealing to the Supreme Court over Maine’s school choice tuition program. She said she did not expect the case would rise to the level that it has, with justices having to wade through so many cases on their dockets.

“To be one of the cases they decide to even consider is quite impressive,” she said. With oral arguments set for Dec. 8, Carson said her husband and daughter Olivia were heading down to Washington, D.C., to try to sit in on the proceedings, although, because of the pandemic, the court is limiting who enters the building.

Carson said since the ’80s, the state has excluded faith-based schools from its list of schools to choose from and thought it might be because people had changed their spending habits. “Do you remember back in the ’70s and ’80s with the energy and fuel crisis?” she asked. “I think people just wanted to keep their money to themselves and didn’t want to share it anymore.”

Carson’s daughter attended Bangor Christian School, where she graduated this past June. The yearly tuition to attend the religious school is less than what the public schools charge the town, she said. “It’s quite a bit under, so it’s not like there would be an additional fee.”

Carson said the entire case is about a family’s choice to pick a school that fits their kid’s needs the best. “Some people send their kids to school for soccer, football, basketball, baseball,” she said. “This faith-based education meets all the educational requirements the state and federal government have put in place.

“It meets and exceeds it, actually,” Carson said. “We are both really grateful that this has gotten as far as it has. Now we will wait and see how it all plays out.”