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 AND AMY CARSON, AS PARENTS AND NEXT

FRIENDS OF O.C., AND TROY AND ANGELA NELSON,

AS PARENTS AND NEXT FRIENDS OF A.N. AND R.N.,

Petitioners,

v.

A. PENDER MAKIN, IN HER OFFICIAL CAPACITY

AS COMMISSIONER OF THE

MAINE DEPARTMENT OF EDUCATION,

Respondent.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The First Circuit

---------------------------------♦--------------------------------BRIEF OF THE FREEDOM FROM RELIGION

FOUNDATION AND CENTER FOR INQUIRY AS

AMICI CURIAE IN SUPPORT OF RESPONDENT

---------------------------------♦--------------------------------PATRICK ELLIOTT

Counsel of Record

SAMUEL T. GROVER

FREEDOM FROM RELIGION FOUNDATION, INC.

P. O. Box 750

Madison, WI 53701

(608) 256-8900

pelliott@ffrf.org

Counsel for Amici Curiae

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

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

ii

INTEREST OF AMICI .........................................

1

SUMMARY OF THE ARGUMENT .....................

2

ARGUMENT ........................................................

5

I.

The Founders wrote the First Amendment

to ensure that taxpayers are not compelled to subsidize a religion that is not

their own ....................................................

5

A. The “no aid” principle—that the government must not subsidize religious

teaching or worship—is fundamental

to the U.S. Constitution .......................

6

B. The “no aid” principle dates to America’s founding and was uniformly accepted after years of experience .......... 10

II.

The “no aid” principle avoids government

entanglement with religious education and

the government oversight that must necessarily be coupled with state funding ........... 14

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

ii

TABLE OF AUTHORITIES

Page

CASES

Eulitt v. Maine Dept. of Educ.,

386 F.3d 344 (1st Cir. 2004) ......................................5

Everson v. Board of Education of

Ewing Township,

330 U.S. 1 (1947) ............................................. 8, 9, 15

Hosanna-Tabor Evangelical Lutheran Church

& Sch. v. E.E.O.C.,

565 U.S. 171 (2012) .................................................15

Korematsu v. United States,

323 U.S. 214 (1944) .................................................14

McCollum v. Bd. of Educ. of Sch. Dist. No. 71,

333 U.S. 203 (1948) ............................................... 8, 9

Sch. Dist. of Abington Twp. v. Schempp,

374 U.S. 203 (1963) ...................................................9

Torcaso v. Watkins,

367 U.S. 488 (1961) ...................................................9

Trinity Lutheran Church of

Columbia, Inc. v. Comer,

137 S. Ct. 2012 (2017) .............................................11

Walz v. Tax Comm’n of City of N.Y.,

397 U.S. 664 (1970) .................................................10

STATUTES

20–A M.R.S. § 2951(2) .............................. 2, 4, 5, 11, 15

iii

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

1 ANNALS OF CONG.

729–31 (1789) ............................................................8

1 JAMES MADISON, Detached Memoranda, Ca. 31

January 1820, in THE PAPERS OF JAMES MADISON, RETIREMENT SERIES, 4 MARCH 1817—31

JANUARY 1820 (David B. Mattern et al. eds.,

2009) ..........................................................................3

2 THOMAS JEFFERSON, 82. A Bill for Establishing

Religious Freedom, 18 June 1779, in THE PAPERS OF THOMAS JEFFERSON (Julian P. Boyd

ed., 1950) ......................................................... 3, 7, 13

8 JAMES MADISON, Memorial and Remonstrance

against Religious Assessments, [ca. 20 June]

1785, in THE PAPERS OF JAMES MADISON, 10

MARCH 1784—28 MARCH 1786 (Robert A. Rutland & William M. E. Rachal eds., 1973).............. 4, 6

Chris Ford, Stephenie Johnson, and Lisette Partelow, “The Racists Origins of Private School

Vouchers,” Center for American Progress (July

12, 2017), https://cdn.americanprogress.org/

content/uploads/2017/07/12184850/Voucher

Segregation-brief2.pdf .........................................12

David Nevin & Robert E. Bills, The Schools That

Fear Built: Segregationist Academies in the

South (1976) ............................................................13

iv

TABLE OF AUTHORITIES—Continued

Page

Erin Richards, Former Employees Cast Doubt

on Voucher School’s Operations, MILWAUKEE

JOURNAL SENTINEL (Dec. 15, 2014), available

at https://bit.ly/2n7I9Nf ....................................... 18

Erin Richards, Leaders of closed Milwaukee

voucher school are now in Florida, MILWAUKEE

JOURNAL SENTINEL (Jan. 15, 2014), available

at https://bit.ly/32nQT0m .......................................17

Frances Paterson, Building a Conservative

Base: Teaching History and Civics in VoucherSupported Schools, 82 THE PHI DELTA KAPPAN, 150 (2000), www.jstor.org/stable/20439835 .......18

Joseph Crespino, In Search of Another Country:

Mississippi and the Conservative Counterrevolution (Princeton Univ. Press, 2021) ......................13

Milwaukee voucher school LifeSkills Academy

closes ‘in the dead of the night’, MILWAUKEE

JOURNAL SENTINEL (Jan. 14, 2014), available

at https://bit.ly/2oAnm5b ........................................16

Molly Beck, State paid $139 million to schools

terminated from voucher program since 2004,

WISCONSIN STATE JOURNAL (Oct. 12, 2014),

available at https://bit.ly/2NlL9zI ..........................16

Robert P. Jones & Daniel Cox, America’s Changing

Religious Identity, Public Religion Research Institute (Sept. 6, 2017), www.prri.org/wp-content/

uploads/2017/09/PRRI-Religion-Report.pdf ................1

v

TABLE OF AUTHORITIES—Continued

Page

Sarah Carr, Who cleans up problem choice

schools?, MILWAUKEE JOURNAL SENTINEL (Sept.

15, 2003), https://goo.gl/zoCc45 ...............................17

1

INTEREST OF AMICI1

The Freedom From Religion Foundation (“FFRF”)—

a national educational nonprofit organization based in

Madison, Wisconsin—is the largest association of freethinkers in the United States, representing more

than 35,000 atheists, agnostics, and other nonreligious

Americans. FFRF has 21 local and regional chapters

across the country, including an FFRF Maine chapter. Today nearly one in four U.S. adults identifies as

religiously unaffiliated.2 Founded nationally in 1978,

FFRF has members in every state, the District of Columbia, and Puerto Rico. FFRF’s two primary purposes

are to educate the public about nontheism and to defend the constitutional principle of separation between

state and church.

The Center for Inquiry (“CFI”) is a nonprofit educational organization dedicated to promoting and defending science, reason, humanist values, and freedom

of inquiry. Through education, research, publishing, social services, and other activities, including litigation,

CFI encourages evidence-based inquiry into science,

pseudoscience, medicine, health, religion, and ethics.

1

All parties consented to the filing of this amicus brief. No

party’s counsel in this case authored this brief in whole or in part.

No party or party’s counsel contributed any money intended to

fund preparing or submitting this brief. No person, other than

amicus, its members, or its counsel contributed money that was

intended to fund preparing or submitting this brief.

2

Robert P. Jones & Daniel Cox, America’s Changing Religious Identity, Public Religion Research Institute (Sept. 6, 2017),

www.prri.org/wp-content/uploads/2017/09/PRRI-Religion-Report.

pdf.

2

CFI advocates for public policy rooted in science, evidence, and objective truth, and works to protect the

freedom of inquiry that is vital to a free society.

---------------------------------♦---------------------------------

SUMMARY OF THE ARGUMENT

Maine has adopted a limited program to allow

private educational institutions to receive direct

grants of taxpayer money in certain communities that

lack equivalent public schools due to low student

population. To qualify for these grants, Maine requires,

among other things, that the private schools be “nonsectarian.” See 20–A M.R.S. § 2951(2). Section 2951(2)’s

“nonsectarian” requirement protects and fosters the

religious freedom of all citizens. It does so by ensuring

that the State does not wield its taxing power to benefit

religious schools or fund religious education. In this

way, no taxpayer is compelled to financially support

any religious ideology that runs counter to their personal beliefs.

This most basic religious liberty protection has

been drowned out in this case by three families of

Maine Christians—who are members of the state’s

majority religion—claiming discrimination. Their attempts to secure government funding to subsidize religious education are a direct assault on the very right

to religious liberty they claim to support. The constitutional prohibition on states taxing citizens for the

benefit of religion, directly or indirectly, guarantees religious liberty for all. As Thomas Jefferson explained

3

in the Virginia Statute on Religious Freedom, “to compel a man to furnish contributions of money for the

propagation of opinions which he disbelieves and abhors, is sinful and tyrannical. . . .” 2 THOMAS JEFFERSON, 82. A Bill for Establishing Religious Freedom, 18

June 1779, in THE PAPERS OF THOMAS JEFFERSON, 545–

53 (Julian P. Boyd ed., 1950). James Madison called the

statute “a true standard of Religious liberty.” 1 JAMES

MADISON, Detached Memoranda, Ca. 31 January 1820,

in THE PAPERS OF JAMES MADISON, RETIREMENT SERIES,

4 MARCH 1817—31 JANUARY 1820, 600–27 (David B.

Mattern et al. eds., 2009). He did so because it stood as

“the great barrier [against] usurpations on the rights

of conscience.” Id.

To open up Maine’s school funding scheme to religiously-segregated schools would imperil, not protect,

religious liberty. The Petitioners argue otherwise because they have failed to correctly identify who possesses that right. The religious liberty at issue here

does not lie with Christian parents or religious schools,

for they remain free to operate and attend private religious schools absent government aid. The rights jeopardized in this case lie with every Maine citizen and

taxpayer.

A state’s taxing power is inherently coercive.

When that power is used directly, or even indirectly, to

benefit religious education, it violates the rights of conscience of all citizens. As James Madison put it:

The Religion then of every man must be left

to the conviction and conscience of every man;

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and it is the right of every man to exercise it

as these may dictate. This right is in its nature an unalienable right. It is unalienable,

because the opinions of men, depending only

on the evidence contemplated by their own

minds cannot follow the dictates of other

men. . . .”).

8 JAMES MADISON, Memorial and Remonstrance

against Religious Assessments, [ca. 20 June] 1785, in

THE PAPERS OF JAMES MADISON, 10 MARCH 1784—28

MARCH 1786, 295–306 (Robert A. Rutland & William

M. E. Rachal eds., 1973) (hereinafter “MADISON, Memorial and Remonstrance”). To employ a state’s taxing

power in such a manner is to permit the very tyranny

that Jefferson and Madison sought to restrain with the

Virginia Statute for Religious Freedom. That is the evil

that Section 2951(2) seeks to avoid: state encroachment on the right of citizens not to subsidize a religion

that is not their own. If this Court accepts the Petitioners’ invitation to abandon this basic principle of religious freedom, we will have reached a disastrous

moment in American history: the era of governmentcompelled tithing.

Reflecting on the legislative history of Section

2951(2), the First Circuit recognized three important

state interests advanced by excluding religious schools

from receiving taxpayer money meant to fund the provision of secular education to Maine students. “These

reasons include Maine’s interests in concentrating limited state funds on its goal of providing secular education, avoiding entanglement, and allaying concerns

5

about accountability that undoubtedly would accompany state oversight of parochial schools’ curricula and

policies (especially those pertaining to admission, religious tolerance, and participation in religious activities).” Eulitt v. Maine Dept. of Educ., 386 F.3d 344, 356

(1st Cir. 2004).

This brief first discusses another much more fundamental and essential state interest protected by the

statute: protecting the religious freedom of its taxpayers by ensuring that they will not be compelled to fund

religious education. The brief then highlights the additional state interest in avoiding the government oversight of private religious schools that would be needed

were those schools receiving state funds. Finally, the

brief addresses how the erosion of the state’s interest

in funding secular education would be more than just

a byproduct of eliminating Section 2951(2), for that result is a desirable goal unto itself for many in the

“school choice” movement.

---------------------------------♦---------------------------------

ARGUMENT

I.

The Founders wrote the First Amendment

to ensure that taxpayers are not compelled

to subsidize a religion that is not their

own.

The legitimate purpose behind Section 2951(2)’s

prohibition on public funding to private religious

schools (the “no aid” principle) is the same fundamental purpose embodied in the First Amendment’s

6

religion clauses: to protect religious freedom. Failing to

enforce this “no aid” requirement would erode religious

liberty.

A. The “no aid” principle—that the government must not subsidize religious

teaching or worship—is fundamental

to the U.S. Constitution.

The Founders of the United States expressly wrote

the “no aid” principle into the First Amendment to prevent the government from using tax money to benefit

any particular religion. Religious worship, religious education, and maintaining places of worship should be

the result of free and voluntary support given by believers in that sect of the religion. James Madison, the

Father of the Bill of Rights and the Constitution, explained this purpose well in his condemnation of a

three-penny tax to support Christian preachers and

churches: “The Religion then of every man must be left

to the conviction and conscience of every man,” not the

taxing power of the state. MADISON, Memorial and Remonstrance, supra.

Religious duty, including financial support of religion, is a personal duty over which governments can

have no jurisdiction. “It is the duty of every man to render to the Creator such homage and such only as he

believes to be acceptable to him,” as Madison put it.

Id. American governments simply do not have the

power to tax citizens to fund churches and religious

education. Alexander Hamilton explained this in The

7

Federalist No. 69: referring to the president, he wrote

that the government “has no particle of spiritual jurisdiction.” This principle is vital to ensure true religious

freedom.

The compulsory support of a religion that is not

one’s own is anathema to American principles. Religious liberty cannot exist when the government can

force citizens to donate to a sect that promises them,

for example, eternal damnation and torture for exercising that freedom of religion. The Virginia Statute for

Religious Freedom also recognized that compelled government support to one’s own religion is a violation of

one’s rights of conscience: “[E]ven the forcing him to

support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of

giving his contributions to the particular pastor whose

morals he would make his pattern.” 2 THOMAS JEFFERSON, 82. A Bill for Establishing Religious Freedom, 18

June 1779, in THE PAPERS OF THOMAS JEFFERSON, 545–

53 (Julian P. Boyd ed., 1950). Thus, striking down “no

aid” clauses, or statutes like Maine’s Section 2951(2)

that embody the “no aid” principle, would jeopardize

the religious freedom of every United States citizen,

including religious adherents.

It is not just direct taxes that violate religious liberty but employing the taxing power in any manner to

fund sectarian education. Daniel Carroll, a Catholic

representative to the Constitutional Convention from

Maryland, put it best during the congressional debates

on the First Amendment when he said that “the rights

of conscience are, in their nature, of peculiar delicacy,

8

will little bear the gentlest touch of the governmental

hand.” 1 ANNALS OF CONG. 729–31 (1789). The government hand at issue here is not the one refusing to slip

cash to Christian schools, but the hand reaching into

every citizen’s pocket to extract that cash—and it’s not

particularly gentle.

The Founders determined that the government

could not subsidize religion and the Supreme Court reaffirmed that principle when it first applied the Establishment Clause to the states. In Everson v. Board of

Education of Ewing Township, the Court wrote, “The

‘establishment of religion’ clause of the First Amendment means at least this. . . . No tax in any amount,

large or small, can be levied to support any religious

activities or institutions, whatever they may be called,

or whatever form they may adopt to teach or practice

religion. . . .” 330 U.S. 1, 15–16 (1947) (emphasis

added). The Court ruled just one year later that allowing religious instructors from various denominations

into public schools violated the Establishment Clause.

McCollum v. Bd. of Educ. of Sch. Dist. No. 71, 333 U.S.

203 (1948). The Court expressly relied upon Everson

and the use of taxpayer money, saying, “This is beyond

all question a utilization of the tax-established and

tax-supported public school system to aid religious

groups to spread their faith.” Id. at 210. The school system argued in McCollum that the program was permissible because the First Amendment “was intended

to forbid only government preference of one religion

over another, not an impartial governmental assistance of all religions.” Id. at 211. The Court soundly

9

rejected this argument and found that rather than

“manifest[ing] a governmental hostility to religion,”

the First Amendment protected religious free exercise

by erecting “a wall between Church and State which

must be kept high and impregnable.” Id. 211–12.

The Supreme Court later reiterated a strong commitment to the religious liberty principles in Everson,

including the prohibition on giving public aid to religion. See Sch. Dist. of Abington Twp. v. Schempp, 374

U.S. 203, 216–17 (1963) (discussing the majority and

dissenting opinions in Everson); Torcaso v. Watkins,

367 U.S. 488, 493 (1961) (recalling that the Court was

“urged to repudiate” the principles in Everson in the

McCollum case and noting it “declined to do this, but

instead strongly reaffirmed what had been said in

Everson . . . ”). The Court’s lengthy discussions of the

meaning and purposes of the First Amendment’s religion clauses in these cases focus on separating religion and government—to the benefit of both. The

Court could not have more resoundingly rejected the

argument now advanced by the Petitioners, that the

religion clauses actually require taxpayers to fund religion. That notion is completely foreign to the Constitution.

Our nation, our Founders, and the Justices of the

Supreme Court have always understood that religious

liberty flourishes when government does not tax citizens to aid religion. It is no surprise then that many

U.S. states have clarified the protection for religious

liberty by statute or through state constitutional “no

aid” provisions. The additions of “no aid” provisions to

10

a state’s school funding scheme are consistent with

this fundamental truth, learned over the course of our

nation’s history. Each state’s interest in protecting its

citizens’ religious liberty by maintaining a strict separation between religious education and state funding

could not be higher.

B. The “no aid” principle dates to America’s

founding and was uniformly accepted

after years of experience.

Though opponents to the separation of state and

church recently have used revisionist history in an attempt to rewrite state-church relations, the federal

government’s early history of embracing state-church

separation has been well-established and acknowledged by the Supreme Court for half a century at least.

“[F]or the men who wrote the Religion Clauses of the

First Amendment the ‘establishment’ of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity.” Walz

v. Tax Comm’n of City of N.Y., 397 U.S. 664, 668 (1970)

(emphasis added).

The history of the states is more varied, each

adopting disestablishment principles at different times

and to varying degrees. New Jersey, Pennsylvania,

Maryland, North Carolina, and Virginia began disestablishment in the year of American independence,

1776. Other states took longer to realize the severe

problems with sponsoring or financially supporting

religion, disestablishing up through the 1830s. See

11

Trinity Lutheran Church of Columbia, Inc. v. Comer,

137 S. Ct. 2012, 2032–36 (2017) (Sotomayor, J., dissenting). But regardless of the timeline, in the case of disestablishment, America’s “laboratories of democracy”

yielded remarkably consistent results. Looking to the

federal model, every state ultimately codified this

self-evident truth: there is no freedom of religion

without a government that is free from religion. States

that funded churches via established religions changed

course. “Every state establishment saw laws passed to

raise public funds and direct them toward houses of

worship and ministers. And as the States all disestablished, one by one, they all undid those laws.” Id.

This history is crucial to the issue now before this

Court. These states experienced religious establishments and after lengthy and careful debates decided

to stop taxing citizens to support religion because doing so violated the civil rights and religious liberty of

those citizens. The states learned this hard lesson

over decades of living in a pluralistic America, which

has only become more diverse nearly two centuries

later. Maine’s Section 2951(2) is a recognition of this

well-established history, within the specific context of

a school funding scheme.

This history seems distant today but was the result of centuries—millennia—of oppression by religion

embedded in the government. Thanks to the constitutional principle of separation between state and

church, Americans have been spared that oppressive

experience. And some, as a result, have become complacent. We are, in some sense, victims of the successful

12

American experiment in keeping state and church separate. Many Americans lack a basic understanding

of how these provisions protect religious freedom.

That has led some, including the well-meaning parents in this case, to question whether the provisions

are still valuable. They are. This Court ought not to

rule against them when they have served this country

so well in protecting religious liberty.

Several amici who filed in support of the Petitioners in this case submit lengthy, tangential historical accounts of anti-Catholic bigotry in a variety of

contexts in an attempt to cloud the unimpeachable intent behind Maine’s “no aid” law. EdChoice, for instance, points to anti-Catholic bigotry in the mid1800s, brought to light during a dispute over which bible to read in public schools in Ellsworth, Maine. See

Br. for EdChoice & Maine Pol’y Inst. as Amici Curiae

Supporting Petitioners at 9–16. But rather than applauding Maine’s decision to disentangle public education from religious indoctrination, EdChoice instead

suggests that Maine’s current school choice program is

tainted by anti-Catholic bigotry that supposedly existed more than a century prior to its adoption. None

of these historical accounts draws a direct connection

between alleged anti-Catholic bigotry and Maine’s

present program. Moreover, none of these historical

accounts even attempts to address the racial discrimination that fueled the modern wave of private schools

and the voucher schemes that now support them, in the

wake of desegregation. See, e.g., Chris Ford, Stephenie

Johnson, and Lisette Partelow, “The Racists Origins of

13

Private School Vouchers,” Center for American Progress

(July 12, 2017), https://cdn.americanprogress.org/

content/uploads/2017/07/12184850/VoucherSegregationbrief2.pdf; Joseph Crespino, In Search of Another

Country: Mississippi and the Conservative Counterrevolution (Princeton Univ. Press, 2021); David Nevin &

Robert E. Bills, The Schools That Fear Built: Segregationist Academies in the South (1976). Indeed, it is

curious to make the argument that a foundational

constitutional principle should be undone due to a

fabricated discriminatory history in a brief supporting

voucher schemes, when voucher programs are themselves born of bigotry and segregation.

Upholding Maine’s modern school-funding scheme,

complete with its “no aid” provision, will not communicate an anti-Christian message. But striking Section

2951(2) from Maine’s program would have immediate,

disastrous results, including compromising the religious freedom of every State citizen. Minority religious

and nonreligious citizens would be immediately coerced into subsidizing religious education with which

they fundamentally disagree. That result would be, as

Thomas Jefferson wrote, “sinful and tyrannical.” The

rights of the state’s Christian taxpayers—the majority

religion—would be similarly infringed, as Jefferson

noted in that same document. 2 THOMAS JEFFERSON, 82.

A Bill for Establishing Religious Freedom, 18 June

1779, in THE PAPERS OF THOMAS JEFFERSON, 545–53

(Julian P. Boyd ed., 1950). Finally, if they begin receiving state funding, religious schools will likely be subjected to the state regulation that must necessarily

14

follow—although they may well fight in court for the

special privilege of receiving state funding without the

concomitant oversight, in which case it will be the students who suffer most.

II.

The “no aid” principle avoids government

entanglement with religious education and

the government oversight that must necessarily be coupled with state funding.

Granting religious schools a right to access the

public purse will inevitably lead to government regulation of religious schools. It must. Where public money

goes, public accountability must follow. State governments have generally had a “hands-off ” approach to religious institutions, including private religious schools,

which are largely unregulated by state education agencies. That will have to change if private schools receive

public money.

The special concerns over state separation and intervention in religion were highlighted by Supreme

Court Justice Robert Jackson, a titan of the Court

whose exemplary dissent in Korematsu v. United States,

323 U.S. 214 (1944) is widely considered one of history’s

greatest dissents for its condemnation of America’s

WWII internment camps for citizens of Japanese ancestry. In a less famous though similarly powerful dissent, he explained how the Constitution protects

religious freedom—he wrote that the First Amendment “take[s] every form of propagation of religion out

of the realm of things which could directly or indirectly

15

be made public business and thereby be supported in

whole or in part at taxpayers’ expense.” Everson, 330

U.S. at 26–27 (Jackson, J., dissenting). He further

noted, “That is a difference which the Constitution sets

up between religion and almost every other subject

matter of legislation, a difference which goes to the very

root of religious freedom. . . .” Id. (emphasis added).

Justice Jackson also highlighted the paramount

rationale underlying the religious freedom protections

in the First Amendment:

This freedom was first in the Bill of Rights because it was first in the forefathers’ minds;

it was set forth in absolute terms, and its

strength is its rigidity. It was intended not

only to keep the states’ hands out of religion,

but to keep religion’s hands off the state, and

above all, to keep bitter religious controversy

out of public life by denying to every denomination any advantage from getting control of

public policy or the public purse.

Id. (emphasis added).

State-church separation gives religion significant

benefits—preventing courts from adjudicating church

ministerial disputes, for instance. See, e.g., HosannaTabor Evangelical Lutheran Church & Sch. v. E.E.O.C.,

565 U.S. 171, 188 (2012) (holding that state resolution

of a ministerial dispute violated the Free Exercise and

Establishment clauses). Attached to these benefits are

relatively few conditions, but one of those few is, most

importantly, that taxpayers will not fund religion. By

seeking an end to Section 2951(2), Petitioners seek to

16

augment the benefits religious institutions receive under the separation of state and church while eliminating the essential conditions. The Petitioners want to

have their cake—which they think Maine taxpayers

must buy—and eat it too. But if they are successful,

this will lead to additional state oversight and control

of religious schools.

When public money flows to private schools, however indirect the route, regulation is necessary and

sensible because the unregulated flow of funds to unaccountable organizations guarantees abuse. Not surprisingly, the country’s longest-lived private voucher

program is bloated with such abuse. In Milwaukee,

Wisconsin, over a ten-year period, more than $139 million in taxpayer funds went to voucher schools that

were kicked out of the program for failing to meet basic

requirements. Molly Beck, State paid $139 million to

schools terminated from voucher program since 2004,

WISCONSIN STATE JOURNAL (Oct. 12, 2014), available at

https://bit.ly/2NlL9zI.

The abuse is startling. One school run by a

preacher, LifeSkills Academy, collected more than

$200,000 in state subsidies for the 2012–13 academic

year before closing abruptly “in the dead of night” in

December, leaving seventy students without a school

to attend. Erin Richards, Milwaukee voucher school

LifeSkills Academy closes ‘in the dead of the night,

MILWAUKEE JOURNAL SENTINEL (Jan. 14, 2014), available

at https://bit.ly/2oAnm5b. State records documented

alarming conditions, including allegations that the

school falsified records of National School Lunch

17

Program meals, served expired food, served “Ramen

noodles with hot sauce and a cup of water for lunch,”

and “cut” whole milk with water. See Amicus Curiae

FFRF’s Letter to the Florida Department of Education

(Jan. 30, 2014), available at https://bit.ly/2Nghnwv.; see

id. at Ex. 10, available at https://bit.ly/2JL4wQv. A former employee charged that the preacher falsified state

records and believed he would get away with it because, “Can’t nothing touch him but God.” Id. Over its

six years, LifeSkills collected more than $2.3 million in

public money before shutting down and leaving families of students scrambling to find a new school. The

preacher fled to a gated community in Florida, where

he opened LifeSkills Academy II. Erin Richards, Leaders of closed Milwaukee voucher school are now in Florida, MILWAUKEE JOURNAL SENTINEL (Jan. 15, 2014),

available at https://bit.ly/32nQT0m.

Alex’s Academic of Excellence—“Academic” is indeed how this school spelled its name—raked in more

than $3.5 million in taxpayer funds over five years before closing. Evicted for code violations from two locations, the school ended up in a storefront. According to

reports, “children departed through the back entrance

on Thursday afternoon and stood beside a trash receptacle overflowing with refuse—including the box

spring for a bed—while they waited for buses to arrive.” Sarah Carr, Who cleans up problem choice

schools?, MILWAUKEE JOURNAL SENTINEL (Sept. 15,

2003), https://goo.gl/zoCc45. The principal saw employees smoking marijuana in school and saw a staffer

with a bag of crack cocaine. The school’s founder and

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CEO was a convicted rapist who received a thirty-year

prison term and served nine years. Id.

There are plenty of other examples from Milwaukee alone. Some private schools receiving voucher

money failed to provide textbooks to students. Erin

Richards, Former Employees Cast Doubt on Voucher

School’s Operations, MILWAUKEE JOURNAL SENTINEL

(Dec. 15, 2014), available at https://bit.ly/2n7I9Nf.

Others taught subjects from fundamentalist Christian

textbooks that claimed things like “a belief in Darwinian evolution” was a cause of World War II and that

through spirituals, “slaves developed the patience to

wait on the Lord and discovered that the truest freedom is freedom from the bondage of sin.” Frances

Paterson, Building a Conservative Base: Teaching

History and Civics in Voucher-Supported Schools, 82

THE PHI DELTA KAPPAN, 150, 151–52 (2000), www.

jstor.org/stable/20439835.

While public schools have elected school boards,

there is little-to-no public oversight of private schools

receiving public money. The citizens who subsidize the

schools end up with no say in even minimal academic

or safety regulations. The solution to these problems

is inevitable if private religious schools receive public

funding: accountability through government oversight.

Religious schools will resist any attempt by the

state to hold them to the standards that apply to public

schools, including, concerningly, the requirements in

the Maine Human Rights Act (MHRA) that schools

receiving state funding not discriminate in hiring

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decisions based on sexual orientation. See, e.g., Amicus Brief of the American Center for Law and Justice

to the First Circuit Court of Appeals, Doc. No.

00117498984 at 5 (Oct. 7, 2019) (“Any requirements

that condemned as ‘discrimination’ a religious school’s

adherence to its mission integrity, and in particular to

religious doctrines on sexuality and human nature,

would essentially put the religious school to the choice

of changing its doctrines or disqualifying itself from

otherwise available public benefits.”). Citizens should

not have to condone such discriminatory hiring practices through taxpayer subsidies.

If religious schools continue to insist on a constitutional right to dip into the public purse, and if this

Court should agree, state-church relations will be altered in fundamental ways for which nobody is prepared. Ultimately, accepting public money will open

private schools to public oversight. And while that

oversight can be accomplished without entangling the

government in religious practice, the necessity of such

regulation will invite entanglement. Keeping religious

schools out of the public treasury allows them to remain free from government regulation and public accountability—another way that the “no aid” statutes

fosters religious freedom.

---------------------------------♦---------------------------------

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CONCLUSION

The religious liberty interest that is primarily

threatened in this case lies not with the Petitioners,

but with Maine taxpayers, and it dates back to America’s founding. The principle that the state must not

fund religious instruction at taxpayer expense is

among our most fundamental and essential rights.

Over our long history, there has never been any indication that religious liberty protections actually require the government to financially support religion.

The cost of revisiting that principle now will be felt by

every citizen in the state.

This Court should not undo the Maine Legislature’s decision not to subsidize sectarian education.

Neither the parents seeking public money, nor the religious schools, have a right to taxpayer funds, directly

or indirectly. The State’s decision is the only path consistent with fundamental principles of religious liberty.

The judgment of the court of appeals should be affirmed.

Respectfully submitted,

PATRICK ELLIOTT

Counsel of Record

SAMUEL T. GROVER

FREEDOM FROM RELIGION

FOUNDATION, INC.

P. O. Box 750

Madison, WI 53701

(608) 256-8900

pelliott@ffrf.org

Counsel for Amici Curiae