Amicus Curiae Brief — David Carson, as Parent and Next Friend of O. C., et al., Petitioners v. A. Pender Makin

No. 20-1088

IN THE

Supreme Court of the United States

________________

DAVID CARSON, AS PARENT

AND NEXT FRIEND OF O. C., ET AL.,

v.

A. PENDER MAKIN,

________________

Petitioners,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the First Circuit

_________________________________________________

BRIEF OF THE CATO INSTITUTE

AS AMICUS CURIAE SUPPORTING PETITIONERS

_________________________________________________

September 10, 2021

Ilya Shapiro

Counsel of Record

Trevor Burrus

CATO INSTITUTE

1000 Mass. Ave., NW

Washington, DC 20001

(202) 842-0200

ishapiro@cato.org

i

QUESTION PRESENTED

Whether a state violates the religion or equal

protection clauses of the Constitution when it

prohibits students participating in an otherwise

generally available student-aid program from

choosing to spend aid on schools that provide religious

instruction.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................ i

TABLE OF AUTHORITIES .................................... iii

INTEREST OF AMICUS CURIAE .......................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................... 1

ARGUMENT ............................................................. 3

I.

MAINE’S DECISION TO DEFINE PUBLIC

EDUCATION AS SECULAR ENCROACHES

ON THE RIGHT TO DIRECT THE

RELIGIOUS UPBRINGING OF ONE’S

CHILDREN, A BASIC COMPONENT OF

FREE EXERCISE............................................... 3

II. PUBLIC EDUCATION AND RELIGION ARE

INEXTRICABLY AND UNAVOIDABLY

ENTWINED........................................................ 8

III. ANTI-ESTABLISHMENT INTERESTS DO

NOT JUSTIFY MAINE’S DECISION TO

DEFINE PUBLIC EDUCATION AS A

NECESSARILY SECULAR ENDEAVOR ....... 17

CONCLUSION ........................................................ 20

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Doe v. Reg'l Sch. Unit 26,

86 A.3d 600 (Me. 2014) ................................... 12, 13

Edwards v. Aguillard, 482 U.S. 578 (1987). ..... 13, 19

Espinoza v. Mont. Dep't of Revenue,

140 S. Ct. 2246 (2020) ...................................... 4, 18

Good News Club v. Milford Cent. Sch.,

533 U.S. 98 (2001) .................................................. 8

Lamb's Chapel v. Ctr. Moriches Union Free Sch.

Dist., 508 U.S. 384 (1993)....................................... 8

Locke v. Davey, 540 U.S. 712 (2004) .................... 4, 18

Pierce v. Society of Sisters, 268 U.S. 510 (1925)........ 3

Rosenberger v. Rector & Visitors of the Univ. of Va.,

515 U.S. 819 (1995) ................................................ 8

Trinity Lutheran Church of Columbia, Inc. v.

Comer, 137 S. Ct. 2012 (2017)................................ 4

Wisconsin v. Yoder, 406 U.S. 205 (1972) ................... 3

Zelman v. Simmons-Harris,

536 U.S. 639 (2002) ........................................ 3, 5, 7

Constitutional Provisions

Me. Const. art. VIII, pt. 1, § 1.................................... 6

Statutes

L.D. 1422, An Act To Prepare Maine People for

the Future Economy (125th Legis. 2012) .............. 9

Me. Rev. Stat. Ann. tit. 20-A, § 2951 (2) ................... 7

iv

Page(s)

Other Authorities

“Maine School Defends Birth Control Program,”

CBS News, Oct. 19, 2017 ...................................... 11

Abigail Curtis, “State Rules in Favor of Young

Transgender,” Bangor Daily News,

Dec. 2, 2014 ........................................................... 12

Beth Brogan, “ACLU to Brunswick: Don’t Teach

‘Intelligent Design’ as Science,” Bangor Daily

News, Apr. 7, 2015, ............................................... 14

Br. of Major Religious Organizations as Amici

Curiae Supporting Petitioner,

Gloucester Cty. Sch. Bd. v. G.G.,

137 S. Ct. 1239 (2017) (No. 16-273) ..................... 13

Charlie Smith, “School Committee to Vote on Sex Ed

Curriculum,” Portland (Me.) Press Herald,

May 23, 2006................................................... 10, 11

Christopher Levenick, “An Episcopalian, an

Atheist, and a Jew Walk into a Catholic

School. . .,” Philanthropy (Spring 2010) ................ 7

Christopher W. Hammons, School Choice Issues

in Depth: The Effects of Town Tuitioning in

Vermont and Maine (2019) ..................................... 1

Common Core State Standards for English

Language Arts & Literacy in History/Social

Studies, Science, and Technical Subjects,

Appendix B: Text Exemplars and Sample

Performance Tasks,

provided by Me. Dep’t of Educ. ............................. 9

v

Page(s)

Diane Macedo, “Maine Commission Shelves Move

to Ban Gender Specific Bathrooms,” Sports

Teams in Schools,” Fox News, Apr. 15, 2010 ....... 14

Judy Harrison, “Transgender Student’s Lawsuit

Ends with $75K award, Order Telling Orono

Schools to Allow Bathroom Access,”

Bangor Daily News (Dec. 1, 2014) ....................... 13

Maine Constitutional Convention, Constitution

for the State of Maine (1819) .................................. 6

Me. Dep’t of Educ., “Maine Health Education

Standards” ............................................................ 10

Me. Dep’t of Educ., “The Guiding Principles of

the Maine Learning Results” ................................. 9

Me. Dep’t of Educ., “Understanding Maine’s Guiding

Principles, Maine Learning Results” (2015) ......... 9

Me. Dep’t of Educ., Standards & Instruction –

Science & Engineering” ........................................ 10

Me. Op. Atty. Gen. No. 80-2 (Jan. 7, 1980) ............... 2

Nick Sambides, Jr., “Yearbook Quote Reinstated

After Gay Student Complains of Discrimination,”

Bangor Daily News, Mar. 23, 2016 ...................... 12

Scott Thistle, “Dozens Testify in Opposition to

Bills to Ban Female Transgender Athletes,”

Portland (Me.) Press Herald, May 6, 2021 .......... 14

Seth Adam, “Maine Education Officials Dispute

Claim that Marriage for Same-Sex Couples Will

Be Taught in Schools,” GLAAD, Sept. 25, 2009 .. 13

vi

Page(s)

Sol Steinmetz, Semantic Antics: How and Why

Words Change Meaning (2008) .............................. 6

Thomas C. Berg & Douglas Laycock, Espinoza,

Government Funding, and Religious Choice,

35 J.L. & Religion 161 (2020)................................. 4

“Toni Richardson Case,” First Liberty Inst., ..... 15, 16

U.S. Comm’n on Civil Rights, School Choice: The

Blaine Amendments & Anti-Catholicism (2007) ... 5

1

INTEREST OF AMICUS CURIAE 1

The Cato Institute was established in 1977 as a

nonpartisan public policy foundation dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Cato’s Robert A.

Levy Center for Constitutional Studies was

established to restore the principles of limited

constitutional government that are the foundation of

liberty. Toward those ends, Cato publishes books and

studies, conducts conferences and forums, and

produces the annual Cato Supreme Court Review.

This case is of interest to Cato because it advocates

for a wide range of First Amendment protections, as

well as educational freedom.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Maine’s public-school tuitioning program began in

1873 and is one of the oldest of its kind in the nation.

See Christopher W. Hammons, School Choice Issues

in Depth: The Effects of Town Tuitioning in Vermont

and Maine 1 (2019), https://bit.ly/3zLYIOK (“To

provide educational opportunities for its children,

many of whom live in rural and non-urban areas,

Vermont and Maine long ago instituted a practice

known as ‘town tuitioning.’”). For over a century,

students in Maine were allowed to direct student-aid

towards religious schools. In 1980, the Maine

legislature asked state attorney general James

1 Rule 37 statement: All parties have filed blanket letters of

consent to the filing of amicus briefs. No part of this brief was

authored by any party’s counsel, and no person or entity other

than amicus funded its preparation or submission.

2

Tierney for his opinion on whether state funding of

private religious schools violated the Establishment

Clause, which he affirmed. Me. Op. Atty. Gen. No. 802 (Jan. 7, 1980). In response, the legislature passed

Me. Rev. Stat. Ann. tit. 20-A, § 2951(2), which

prohibited “sectarian” schools from receiving aid.

Even after Zelman v. Simmons-Harris, 536 U.S.

639 (2002), in which this Court held that a state may

subsidize religious education without running afoul

the Establishment Clause, Maine’s legislature

declined to repeal the nonsectarian requirement. The

state claims that its decision to define public

education as a necessarily secular endeavor renders

the nonsectarian requirement consistent with Zelman

and other precedents of this Court. In other words,

Maine avers that this is not a traditional school-choice

program, but the state’s contracting private schools to

provide public education—which it defines as

necessarily secular.

That’s a meaningless distinction. Under the guise

of providing a “religiously neutral” education, Maine

discriminates against religious families whose

children attend or hope to attend private religious

schools. Public schools are, however, anything but

religiously neutral. Maine cannot cleanly separate

public education from religion; it has merely elevated

the secular above the religious. Indeed, secularism in

public schools has become akin to a state-established

religion: the secular values that the state promotes

conflict with deeply and sincerely held religious

beliefs, so classroom conflicts often arise. Maine

unjustly alienates religious individuals, treating

them as second-class citizens in the context of school

tuitioning for merely living as their faith demands.

3

Moreover, parents’ rights to direct their children’s

religious upbringing is well established and not in

question here. Yet Maine attempts to circumvent

those rights, protected though they may be by the

Free Exercise Clause and this Court’s precedents.

Free Exercise and Equal Protection are mere

platitudes if states may withhold otherwise neutral

public benefits based on the religious character of a

would-be recipient. Indeed, if religious freedom

means anything, it is the right to practice religion free

of unlawful government coercion. When the state

conditions the receipt of a generally available benefit

on the cabining of religious practice, it discriminates

against religion. The only constitutionally sound

solution here is to allow education dollars to flow

where students and families direct them.

ARGUMENT

I. MAINE’S DECISION TO DEFINE PUBLIC

EDUCATION AS SECULAR ENCROACHES

ON THE RIGHT TO DIRECT THE

RELIGIOUS UPBRINGING OF ONE’S

CHILDREN, A BASIC COMPONENT OF

FREE EXERCISE

The right to direct the spiritual upbringing of one’s

children is an indispensable and long-recognized

component of religious free exercise. See, e.g., Pierce

v. Society of Sisters, 268 U.S. 510 (1925); Wisconsin v.

Yoder, 406 U.S. 205 (1972). In Zelman v. SimmonsHarris, the Court recognized that parental choice

attenuates any unlawful link between government

and religion when a state decides to subsidize private

education. 536 U.S. 639 (2002). The Court further

recognized that the Free Exercise Clause forbids

4

states from denying such public benefits based solely

on the religious status of a would-be recipient. Trinity

Lutheran Church of Columbia, Inc. v. Comer, 137 S.

Ct. 2012, 2024 (2017). The Court expounded on that

fundamental constitutional requirement of religious

equality in the distribution of public benefits when it

held that a state may not categorically exclude

religious schools from a generally available studentaid program. Espinoza v. Mont. Dep’t of Revenue, 140

S. Ct. 2246, 2261 (2020).

Zelman, Trinity Lutheran, and Espinoza are

modern cases that demarcate the space required

today by the “play in the joints between what the

Establishment Clause permits and what the Free

Exercise Clause compels.” Id. at 2254; see also Locke

v. Davey, 540 U.S. 712, 715 (2004). When government

denies religious families the right to direct otherwise

neutral student-aid towards religious schools of their

choice, the joints have locked up. Maine’s

nonsectarian requirement is no different from the noaid provision in Espinoza or the denial of recycled

tires in Trinity Lutheran. Each instance is an act of

religious discrimination odious to our Constitution,

violating the Free Exercise Clause.

Maine’s argument relies on an unworkable

distinction drawn in Trinity Lutheran between

religious status and religious use. See Opp. Br. at 16;

Trinity Lutheran, 137 S. Ct. at 2024 n.3. The First

Amendment, however, “does not care.” Id. at 2026

(Gorsuch, J., concurring in part). See also Thomas C.

Berg & Douglas Laycock, Espinoza, Government

Funding, and Religious Choice, 35 J.L. & Religion 161

(2020) (discussing why the status-use distinction

doesn’t matter when analyzing free-exercise claims).

5

Maine claims that, “[e]ven if the Constitution does

not prohibit including religious schools in the tuition

program, Maine has continued the nonsectarian

requirement not because of any animus toward

religion, but because of what it believes to be the

critical features of a system of public education:

diversity, tolerance, and inclusion.” Opp. Br. at 18. In

what might be characterized as animosity towards

religion, the state claims to believe that such

wholesome values are impossible to achieve when

students and families are allowed to direct education

dollars towards religious schools.

Curiously, Maine does not have a “Blaine

amendment,” despite James G. Blaine’s having been

a senator from that state. See Opp. Br. at 3; U.S.

Commission on Civil Rights, School Choice: The

Blaine Amendments & Anti-Catholicism 17 (2007).

Blaine’s proposed federal amendment, later adopted

by many states, would have barred any government

funding from going directly or indirectly to “sectarian”

schools. Id. at 23. At the time, “the term sectarian

both expressed and implemented hostility to the

faiths of those immigrants (especially, but not only,

Catholics) who resisted assimilation to the

‘nonsectarian’ Protestantism then taught as the

‘common faith’ in the ‘common schools.’” Id. at 7.

Indeed, for most of American history, including in

Blaine’s time, many public schools were de facto

religious institutions, teaching at least the rudiments

of Protestant Christianity, including reading from the

King James Bible. See Zelman, 536 U.S. at 720.

While it lacks a Blaine amendment, Maine’s

constitution does require the legislature to provide a

system of public education:

6

A general diffusion of the advantages of

education being essential to the preservation of

the rights and liberties of the people . . . the

Legislature are authorized, and it shall be their

duty to require, the several towns to make

suitable provision, at their own expense, for the

support and maintenance of public schools; and

it shall further be their duty to encourage and

suitably endow, from time to time, as the

circumstances of the people may authorize, all

academies, colleges and seminaries of learning

within the State. . .

Me. Const. art. VIII, pt. 1, § 1 (emphasis added); cf.

Opp. Br. at 1 (emphasized part omitted from brief).

Indeed, Maine’s constitution itself recognizes that

the state must fund religious schools where

appropriate. Maine drafted its constitution in 1819.

Maine Constitutional Convention, Constitution for

the State of Maine (1819), https://bit.ly/2WONVoH.

At the time, the original public meaning of “seminary”

included religious schooling. See Sol Steinmetz,

Semantic Antics: How and Why Words Change

Meaning 205 (2008) (“In Roman Catholic usage,

seminary has been used since 1581 to mean ‘a school

or college for training students for the priesthood.’ In

the 1800s, such an institution came to be called a

theological seminary, a term used also for a school or

college for training students to be ministers or

rabbi.”). From 1874 until 1980, Maine allowed aid to

flow to sectarian schools. Opp. Br. at 3–4. Yet the

state now posits that a private school must be “a

nonsectarian school in accordance with the First

Amendment of the United States Constitution” to

receive student-aid from families participating in the

7

state’s otherwise neutral student-aid program. See

Me. Rev. Stat. Ann. tit. 20-A, § 2951 (2).

Notwithstanding the Court’s decisions in Zelman,

Trinity Lutheran, and Espinoza, the nonsectarian

requirement has remained in place.

The practical effect of the nonsectarian

requirement is to “deny emancipation” to students—

religious or not—located within underserved areas

who hope to attend religious schools. See Zelman, 536

U.S. at 676 (Thomas J., concurring). 2 Justice

Thomas’s invocation of abolitionist Frederick

Douglass in Zelman is particularly prescient:

‘[E]ducation . . . means emancipation. It means

light and liberty. It means the uplifting of the

soul of man into the glorious light of truth, the

light by which men can only be made free.’

Today many of our inner-city public schools

deny emancipation to urban minority students.

Id. (emphasis added).

Today, Maine denies emancipation to students in

rural areas without educational options. See Opp. Br.

at 20. Banning religious schools from student aid

denies families whose children hope to attend

religious private schools the same opportunity the

state affords those who choose a secular education for

their children. That is religious discrimination.

2 See generally Christopher Levenick, “An Episcopalian, an

Atheist, and a Jew Walk into a Catholic School. . .,” Philanthropy

(Spring 2010), https://bit.ly/3yHIQvi (discussing the benefits of

faith-based education for secular students and the non-Catholic

patron-donors of Catholic schools in inner-city New York).

8

II. PUBLIC EDUCATION AND RELIGION ARE

INEXTRICABLY

AND

UNAVOIDABLY

ENTWINED

Public education in Maine is anything but

religiously neutral. The Court has long applied the

bedrock principle of religious equality to protect the

religious liberty of public-school students against

coercive state action. See, e.g., Good News Club v.

Milford Cent. Sch., 533 U.S. 98 (2001) (finding that

anti-establishment interests did not justify excluding

a religious club from a public-school forum);

Rosenberger v. Rector & Visitors of the Univ. of Va.,

515 U.S. 819 (1995) (finding that anti-establishment

interest did not justify refusal to pay the printing

costs of a student publication with religious

editorials); Lamb’s Chapel v. Ctr. Moriches Union

Free Sch. Dist., 508 U.S. 384 (1993) (finding

impermissible religious discrimination where a school

allowed presentation of all views about family issues

and child rearing besides those coming from a

religious standpoint). Evidently, religion finds its way

into public schools no matter how hard government

tries to separate the two.

Maine’s curriculum standards require students to

learn about morality, ethics, and personal beliefs.

When Maine mandates secular curriculum, all the

while forbidding even neutral discussion of religious

perspectives, the state could be thought of as

promoting a type of “religious” establishment of its

own: secularism. When the state posits that the role

of public school is to convene diverse children in open,

secular institutions, it elevates secular morality and

ethics over religious morality and ethics. Public

schooling thus discriminates against religion by

9

requiring all Maine citizens to pay for secular schools

while de facto saying “secularism is the mainstream,

and official, worldview of the state.”

Proficiency standards set by the legislature

determine the criteria for students in Maine seeking

to attain a diploma. L.D. 1422, An Act To Prepare

Maine People for the Future Economy (125th Legis.

2012). Summarized in Maine’s “Guiding Principles,”

this includes a determination of whether the student

“demonstrates ethical behavior and the moral

courage to sustain it.” See Me. Dep’t of Educ., “The

Guiding Principles of the Maine Learning Results”,

https://bit.ly/38xfyoN (last visited Sept. 9, 2021.

Although the bounds of morals and ethics are tricky

and often dictated by religion for many, the

department’s guidelines for interpreting the Guiding

Principles conspicuously fails to mention “morals” or

“ethics” even once. See generally Me. Dep’t of Educ.,

“Understanding Maine’s Guiding Principles, Maine

Learning Results” (2015), https://bit.ly/3t7qrai. While

not necessarily required, reading standards in Maine

include books to which parents have expressed moral

objections, including Toni Morrison’s The Bluest Eye,

Julia Alvarez’s In the Time of Butterflies, and Cristina

Garcia’s Dreaming in Cuban. See Common Core State

Standards for English Language Arts & Literacy in

History/Social Studies, Science, and Technical

Subjects, Appendix B: Text Exemplars and Sample

Performance Tasks, provided by Me. Dep’t of Educ.,

https://bit.ly/3zFQZSt, (last visited Sept. 7, 2021.

Meanwhile, the state’s health education standards

require students to “demonstrate healthy practices

and behaviors to maintain or improve the health of

self and others” regarding the prevention of STDs,

10

HIV,

and

unintended

pregnancy—directly

implicating religious values in family planning. See

Me. Dep’t of Educ., “Maine Health Education

Standards”, https://bit.ly/3kMoGLY, (last visited

Sept. 7, 2021. Students are further required to

analyze and evaluate how culture, personal values,

and beliefs influence individual health behaviors. Id.

The state’s science and engineering standards require

students to grapple with the Big Bang and Darwinian

evolution, two theories that are directly at odds with

the creationist perspective. See Me. Dep’t of Educ.,

Standards & Instruction – Science & Engineering”,

https://bit.ly/3mXDRVi, (last visited Sept. 7, 2021).

These standards engender an educational culture

that is directly opposed to religion.

The recurring conflicts involving religious beliefs

that arise out of Maine public schools are indicative of

the state’s exclusion of religion. Although a secular,

one-size-fits-all school system may have once been

thought to promote social cohesion, diversity, and

pluralism, the opposite is often the unintended

consequence. Public schools promote secular values

that are in direct conflict with certain religious

teachings. Conflicts thus arise, implicating deeply

held personal beliefs and guaranteeing that when one

fundamental value wins, another loses.

In 2006, Maine’s Westbrook School District voted

on changes to the sex education curriculum that

would require teaching eighth graders about

contraception. Charlie Smith, “School Committee to

Vote on Sex Ed Curriculum,” Portland (Me.) Press

Herald, May 23, 2006, https://bit.ly/2WRSoax.

Parents retained the right to opt-out of their child

receiving

these

classes.

Despite

this

11

accommodation—and perhaps signifying the inherent

divisiveness of teaching sensitive issues in public

schools—many parents spoke out both in support and

in opposition to the change. Id.

In 2007, school officials in Portland, Maine, voted

to provide birth control for girls as young as 11:

King Middle School will become the first middle

school in Maine, and apparently one of only a

few in America, to make a full range of

contraception available, including birth-control

pills and patches. Students would need

parental permission to use the city-run health

center in the school, but they would not have to

tell them they were seeking birth control.

“Maine School Defends Birth Control Program,” CBS

News, Oct. 19, 2017,

https://cbsn.ws/3kUMxc7.

Bishop Richard Malone, the head of Maine’s Roman

Catholic diocese at the time, expressed concern that

the decision would, “inevitably lead to more sexual

experimentation among younger children,” and that

it “sends a message that the government should

replace parents in certain parts of the child’s life, even

without the parents’ knowledge.” Id. Indeed, a

supporter of the bill claimed, “it’s not enough to

depend on parents to protect their children because

there may be students who can’t discuss things with

their parents.” Id. Supporters of mandatory secular

education would thus rather the state act in loco

parentis than have parents raise their own children.

Public schools are now a battleground in which

religious beliefs are tested against the state’s

preferred secular system of belief. Schools become

engulfed in this cultural warfare precisely because

12

children and families are denied emancipation from

schools the state locks them into. The unemancipated

fight to impose their personal beliefs on others so that

they may not see or feel their own chains.

For example, at Penobscot Valley High School, in

Howland, Maine, the principal removed a student’s

senior quote from the school’s yearbook for containing

“connotations” of gay pride. Nick Sambides, Jr.,

“Yearbook Quote Reinstated After Gay Student

Complains of Discrimination,” Bangor Daily News,

Mar. 23, 2016, https://bit.ly/3mTq8ic (“No wonder I

dress so well. I didn’t spend all that time in the closet

for nothing.”). The principal stated that she found the

quote offensive and that the yearbook should not

contain anything that “we could regret or change our

minds about later.” Id. The school superintendent

ultimately reinstated the quote, claiming that school

principals are “not supposed to have bias against

anybody or any particular group.” Id.

And conflicts over the imposition of personal

values have cost school districts in litigation. For

example, in 2008, a student’s grandfather complained

that Asa C. Adams Elementary School allowed a 10year-old biological male with gender dysphoria use

the girls’ bathrooms. See Doe v. Reg’l Sch. Unit 26, 86

A.3d 600 (Me. 2014). He believed that “[l]ittle boys do

not belong in the little girls’ room, and vice versa.”

Abigail Curtis, “State Rules in Favor of Young

Transgender,” Bangor Daily News, Dec. 2, 2014,

https://bit.ly/3BCrr9q. Indeed, at least nine major

religious traditions hold that “personal identity as

male or female is a divinely created and immutable

characteristic.” See Br. of Major Religious

Organizations as Amici Curiae Supporting Petitioner,

13

Gloucester Cty. Sch. Bd. v. G.G., 137 S. Ct. 1239

(2017) (No. 16-273). Under pressure from parents, the

school eventually reversed course, requiring the

transgender child, Nicole Maines, to use a single-stall

faculty bathroom once again. 86 A.3d at 603.

When Maine appealed the school’s transgender

bathroom decision, the Maine Human Rights

Commission (MHRC) unanimously found it

discriminatory to not let the student use the girls’

restroom. See id. The state supreme court agreed,

holding that denying a public-school student access to

the appropriate bathroom constitutes sexualorientation discrimination where it is “clearly

established that a student’s psychological well-being

and educational success depend upon being permitted

to use the communal bathroom consistent with her

gender identity.” Id. at 607. On remand, the

Penobscot County Superior Court ordered the school

district to pay $75,000 for attorney’s fees. Judy

Harrison, “Transgender Student’s Lawsuit Ends with

$75K award, Order Telling Orono Schools to Allow

Bathroom Access,” Bangor Daily News (Dec. 1, 2014),

https://bit.ly/3mXfUgQ.

Such conflicts aren’t a new phenomenon. When

Maine first contemplated legalizing gay marriage in

2009, opponents ran ads out of fear that same-sex

marriage would be taught as proper in public schools.

Seth Adam, “Maine Education Officials Dispute

Claim that Marriage for Same-Sex Couples will be

Taught in Schools,” GLAAD, Sept. 25, 2009,

https://bit.ly/38z9Rq6. Most recently, state legislators

sponsored a bill that would ban female transgender

athletes from competing with biological females in

public school sports. Scott Thistle, “Dozens Testify in

14

Opposition to Bills to Ban Female Transgender

Athletes,” Portland (Me.) Press Herald, May 6, 2021,

https://bit.ly/3n4k6v0. Conflicts over sexuality and

the institution of marriage implicate core religious

values about personal identity and faith.

In 2010, the MHRC proposed controversial

guidelines for how schools should accommodate

transgendered students, including a ban on singlegender restrooms and sports teams. Diane Macedo,

“Maine Commission Shelves Move to Ban Gender

Specific Bathrooms, Sports Teams in Schools,” Fox

News, Apr. 15, 2010, https://fxn.ws/2WOcGRx. Those

guidelines were ultimately withdrawn after

considerable outrage from concerned citizens.

Bias against teachers who discuss religion merely

for learning purposes is evident. Lou Sullivan, a fifthgrade teacher at Harriet Beecher Stowe Elementary

in Brunswick, Maine, came under fire for discussing

intelligent design alongside the Big Bang and other

creation theories. Beth Brogan, “ACLU to Brunswick:

Don’t Teach ‘Intelligent Design’ as Science,” Bangor

Daily News, Apr. 7, 2015, https://bit.ly/3gYs7y1.

When asked about the lesson, Sullivan explained,

the ‘Intelligent Design’ discussion is something

I include each year when I present my lesson on

the Big Bang and other theories. I began the

discussion after years of speaking with families

[who] have very different beliefs about how the

universe was created. I often heard concerns

about how this lesson was presented. I try to

allow all students to share what they believe

about the creation of the universe.

Id.

15

Meanwhile, Catherine Gordon, a math teacher at

Bangor High School had been decorating her

classroom with a pink Hello Kitty Christmas tree for

30 years until the school’s principal found it

inappropriate and ordered her to take it down. Judy

Harrison, Bangor teacher says she was ordered to

remove Christmas tree from classroom, Bangor Daily

News (Dec. 21, 2015), https://bit.ly/3n7DHKR.

Gordon’s comments on the school’s sudden change of

heart encapsulate an increasing animosity towards

religion: “When I first started teaching, we had

parties the last day of school before vacation and the

kids would bring in cookies and we played holiday

music—none of that is allowed now.” Id. That same

school year, the same principal failed to remove a

senior yearbook quote attributed to Adolf Hitler. Nick

McCrea et al., “‘Regrettable’ Oversight Leads to

Hitler Quote in Bangor High Yearbook,” Bangor Daily

News, June 2nd, 2016 (“Anyone who sees and paints

a sky green and the fields blue ought to be

sterilized.”). That “regrettable oversight” allowed

publication of a quote attributed to a man who

slaughtered millions of those he considered the wrong

religion, but there is never such a lack of oversight

when it comes to the heavy-handed regulation of

religious public-school teachers in Maine.

Bias against religion is present even in private

interactions between teachers in which no students

are present. Toni Richards, an education technician

who works with special needs students in Augusta,

Maine, told a coworker and fellow churchgoer in a

private conversation that she “would pray for them.”

“Toni Richardson Case,” First Liberty Inst., (last

visited Sept. 7, 2021, https://bit.ly/2WRyg8p. In

16

response, school officials ordered her to never tell

anyone that she would pray for them, or to make

“faith-based” statements on campus ever again under

threat of disciplinary action. Id.

Public schools cannot operate without dealing

with topics, either curricular or administrative, that

implicate religion. Indeed, basic rules prohibiting

lying or stealing implicate religion, in that they have

a moral basis, and many people believe that one

cannot have morality without religion: a God that

defines what is or is not okay. More specifically, school

policies such as bathroom and locker room access

involve religious ramifications for many people.

Teaching history involves discussion of religion and

religious groups, often with judgments attached. And

assigned readings often deal with religion or

behaviors with immediate religious implications.

In sum, it is impossible to study personal values,

culture, or beliefs without including the influence of

religion. The state cannot reasonably define “ethical

behavior” or “the moral courage to sustain it” in its

curriculum standards as purely secular. Ethics and

morality are nebulous and malleable subject matter

that are pervasively entwined with religious beliefs.

When the state takes sex education into its own

hands, such as by teaching students about STDs or

contraception, it is encroaching on religious beliefs

about ethics and morality and religious conceptions of

the meaning and sanctity of life. Similarly, Darwinian

evolution is directly at odds with the creationist point

of view. When the state posits that its chosen theories

are the preferred curricula that should be taught in

public school, it is exhibiting an ideological bent of its

own—not unlike religious conviction.

17

III. ANTI-ESTABLISHMENT INTERESTS DO

NOT JUSTIFY MAINE’S DECISION TO

DEFINE PUBLIC EDUCATION AS A

NECESSARILY SECULAR ENDEAVOR

Maine argues that the nonsectarian requirement

is consistent with Trinity Lutheran and Espinoza in

that the state is not subsidizing private education, but

rather utilizing private schools to provide a public

education, which it defines as a necessarily secular

endeavor. See Opp. Br. at 18, 20. The state claims that

the program “is not designed as an alternative to

Maine’s public education system but as a part of it.”

Id. at 19. Maine’s argument fails for several reasons:

(1) public schools in Maine exhibit an ideological bent

comparable to religious institutions like those barred

from receiving aid; (2) religion and education are

inextricably entwined, such that mandating a secular

education while denying religious options necessarily

discriminates against religion; and (3) private choice

in the hands of parents attenuates any unlawful

entanglement between government and religion when

the state decides to subsidize private education. In

other words, the “religiously neutral” public

education

engendered

by

the

nonsectarian

requirement is anything but. The provision blatantly

discriminates against families whose children attend

or hope to attend private religious schools in Maine.

More importantly, the Court should not permit

Maine’s strategic end-run around the Free Exercise

Clause’s requirement of religious equality in the

distribution of neutral public benefits. Accepting the

state’s argument here would enable government to

discriminate against religion wholesale under the

guise of promoting neutral values. Such a result

18

would essentially sanction the establishment of

secularism as the state’s preferred belief system.

Just like the Montana Department of Revenue in

Espinoza, Maine seeks to avoid application of Trinity

Lutheran, contending that this case is instead

governed by Locke v. Davey. See Espinoza, 140 S. Ct.

at 2257; Opp. Br. at 5. This argument fails for the

same reason it did in Espinoza: Locke implicated

Establishment Clause concerns because Joshua

Davey sought to use state funds to become a

minister—but he was still permitted to use those

funds at pervasively religious schools. Locke, 540 U.S.

at 715. Nothing in the record suggested animosity

towards religion. Id. The Court added:

Given the historic and substantial state

interest at issue, it cannot be concluded that the

denial of funding for vocational religious

instruction alone is inherently constitutionally

suspect. . . . The State’s interest in not funding

the pursuit of devotional degrees is substantial,

and the exclusion of such funding places a

relatively minor burden on [the tuition

program]. If any room exists between the two

Religion Clauses, it must be here.

Id. (emphasis added).

Locke thus involved vocational religious

education, not a general K-12 public education that

Maine now seeks to deny religious students and

families. The Promise Scholarship in Locke was

“religiously neutral” because all vocational religious

higher education was prohibited, and the prohibition

was justified by legitimate anti-establishment

interests. One could not use the Promise Scholarship

19

to become a Buddhist Monk, a Catholic Minister, or a

Jewish Rabbi but, unlike in Maine’s program, one

could use those funds to attend a Buddhist monastery

school, a Catholic academy, or a Jewish day school.

The anti-establishment interests present in Locke are

thus totally absent when Maine decides to

categorically exclude private religious schools from

their student-aid program for teaching students

about their faith.

Religious schools excluded from Maine’s tuitioning

program are not training ministers, but simply

providing education with a religious perspective.

Ironically, Maine cites Edwards v. Aguillard to assert

that “[t]he public school is at once the symbol of our

democracy and the most pervasive means for

promoting our common destiny. In no activity of the

State is it more vital to keep out divisive forces than

in its schools.” Opp. Br. at 25; see Edwards v.

Aguillard, 482 U.S. at 584. Not only does the date of

that case show how recently religion was still overtly

in some public schools—in part because many believe

religion is integral to education—but the quote

ignores the basic reality of religious and value-laden

conflicts in public schools to suggest that removing

overt religion would somehow “keep out divisive

forces.” Instead, it merely moves the controversial

status quo from public schools promoting religion to

discriminating against it.

Unless all people cease to be religious, religion

cannot be separated from public schooling. Religious

people will thus either be forced to fight to make their

values the ones districts follow—perhaps by not

explicitly mentioning their religious basis—or to pay

20

for schools that violate their convictions and treat

them as second-class citizens.

CONCLUSION

Maine is discriminating against religion, in

violation of the First and Fourteenth Amendments, by

allowing parents living in districts without public

schools to choose any private school except those that

teach religious values. The state’s nonsectarian

requirement is inconsistent with the Court’s opinions

in Zelman, Trinity Lutheran, and Espinoza, and

ignores a fundamental reality of public education: it

cannot avoid decisions of religious importance.

By demanding secularism, the state is simply

deciding that overt religious beliefs lose out. That is

discrimination, not neutrality. Accordingly, the

judgment below should be reversed.

Respectfully submitted,

September 10, 2021

Ilya Shapiro

Counsel of Record

Trevor Burrus

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, D.C. 20001

(202) 842-0200

ishapiro@cato.org