Andrew Wimer
Andrew Wimer · June 26, 2019

Portland, Maine—United States District Court Judge D. Brock Hornby today issued a ruling upholding a Maine law that excludes religious schools as an option for parents and students from the state’s high school tuitioning program. In his written ruling, Judge Hornby cited a prior appellate court decision upholding the exclusion of religious options as binding on him at the present time, but recognized that a recent U.S. Supreme Court ruling may provide a basis for the appellate court to reconsider its prior opinion. The parents challenging the law and their attorneys at the Institute for Justice (IJ) and the First Liberty Institute (FLI) will appeal today’s decision to the United States Court of Appeals for the First Circuit.

“Today’s decision is disappointing but not unexpected,” said IJ senior attorney Tim Keller. “District judges are generally required to uphold previous rulings from higher courts and we expected that, no matter the decision, this important case was going to be appealed. We are grateful that Judge Hornby moved quickly to issue a ruling just two days after the hearing. This fight against religious discrimination is headed to the First Circuit and then possibly to the Supreme Court.”

“We’re disappointed that today’s ruling did not end Maine’s discrimination against religious schools,” said Judy Gillis, one of the parent plaintiffs in the case. “However, we are waging this fight not only for our own daughter, but for every family that wants to send their son or daughter to the school that works best for them. We look forward to the appeals court hearing our case.”

“We’re very pleased that the court recognized our clients have legal standing in the case and look forward to taking their cause to the U.S. Court of Appeals for the First Circuit,” said Lea Patterson, FLI counsel. “This ruling was an important first step in the process, which we’re confident will ultimately bring more clarity to religious liberty in education.”

In today’s decision, the judge determined that plaintiff parents are entitled to challenge the law in court. This finding will allow the appeal of the decision to center on whether recent U.S. Supreme Court decisions require overturning previous rulings by the First Circuit that upheld Maine’s limitations against parents using their tuitioning funds at religious schools. One of those recent decisions, a 2017 ruling in Trinity Lutheran Church of Columbia v. Comer, found that excluding a church “from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution . . . and cannot stand.”

The U.S. Supreme Court is presently considering IJ’s cert petition to overturn a Montana Supreme Court decision that allows the government to bar families from participating in an otherwise generally available student-aid program merely because the parents have selected a religious school for their children. Should the Supreme Court hear the Montana case and rule on behalf of parents, it could affect the outcome of the challenge in Maine.