Amicus Curiae Brief — Anderson v. Town of Durham, Maine (No. 06-132)

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AUG 25 2006

No. 06-132

In The

Supreme Court of the Anited States

JULIA ANDERSON, et al/.,

Petitioners,

Vv

TOWN OF DURHAM, et ai.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE MAINE SUPREME COURT

BRIEF OF STATE OF FLORIDA GOVERNOR

JOHN ELLIS “JEB” BUSH AND THE STATE

BOARD OF EDUCATION, AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

RAQUEL A. RODRIGUEZ

General Counsel

NATHAN A. ADAMS, IV

Deputy General Counsel

Counsel of Record

State of Florida

Executive Office of

Governor Jeb Bush

The Capitol

4u0 South Monroe Street

Tallahassee, Florida 32399

(850) 488-3494

DANIEL WOODRING

General Counsel

TIMOTHY D. OSTERHAUS

Assistant General Counsel

Florida Department of

Education

325 West Gaines Street

Tallahassee, Florida 32399

(850) 245-0442

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF THE AMICI

SUMMARY OF ARGUMENT

ARGUMENT

I. AS INTERPRETED BY MAINE’S

SUPREME COURT, ME. REV. STAT. ANN.

TIT. 20, § 2951(2) VIOLATES THE FIRST

AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION ........... 11

A. The Maine Supreme Court Has

Misread Locke and Thereby

Permitted Unlawful

Discrimination Against Religious

Persons.

The Objective Observer Would

Conclude that ME. REV. STAT.

ANN. tit. 20, §2951(2) Manifests

Hostility Toward Religion. ............. 15

Prohibiting Eligible Persons from

Receiving Public Scholarships to

. Attend Religious Schools Violates

the Free Exercise and Equal

Protection Clauses

The Imposition of

Criminal Sanctions Is

Wholly Unnecessary to

Find a Free Exercise and

Equal Protection

Wee 5-5: vewses deeeewe news 20

A Statute Violates the

Free Exercise Clause

Through Hostility

Towards Religious

Practice, Regardless of

Whether the Statute

Compels Members of Any

Religion to Violate the

Core Tenets of Their

Maine’s Discriminatory

Statute Is Identical in

Effect to Florida’s Blaine

EN sg i 0's a ve ds bau e ha ees 25

CONCLUSION

TABLE OF AUTHORITIES

CASES

Anderson v. Town of Durham,

895 A.2d 944 (Me. 2006)

Bagley v. Raymond Sch. Dep't,

728 A.2d 127 (Me. 1999)

Braunfeld v. Brown,

366 U.S. 599 (1961)

Brown v. Board of Educ.,

347 U.S. 483 (1954)

Bush v. Holmes,

886 So. 2d 340 (Fla. 1st Dist. Ct. App. 2004)

(en banc), aff'd in part, 919 So. 2d 392

(Fla. 2006)

Capitol Sq. Rev. and Advisory Bd. v. Pinette,

515. U.S. 753 (1995)

Children A&B v. Florida,

355 F. Supp. 2d 1298 (N.D. Fla. 2004), aff'd,

140 Fed. Appx 845 (11th Cir, 2005)

Church of Lukumi Babalu Aye, Inc. v. Hialeah,

508 U.S. 520 (1993)

Edwards v. Aguillard,

482 U.S. 578 (1987)

Employment Div., Dep’t of Human Res. v. Smith,

494 U.S. 872 (1990) _

Eulitt ex rel. Eulitt v. Maine Dep’t of Educ.,

ee Re Gls BE bic hicks renee iareds 22, 26

Everson v. Board of Educ.,

380 U.S. 1 (1947)

Good News Club v. Milford Cent. Sch.,

533 U.S. 98 (2001)

Hartmann v. Stone,

68 F.3d 973 (6th Cir. 1995)

Lemon v. Kurtzman,

403 U.S. 602, (1971)

Locke v. Davey,

540 U.S. 712 (2004)

Lyng v. Northwest Indian Cemetery Protective Ass'n,

485 U.S. 439 (1988) ..

McCreary County, Ky. v. ACLU

__US.__, 125 §. Ct. 2722 (2005)

McDaniel v. Paty,

435 U.S. 618 (1978)

Mitchell v. Helms,

530 U.S. (2000)

Peter v. Wedl,

155 F.3d 992 (8th Cir. 1998)

Pierce v. Soc’y of Sisters,

268 U.S. 510 (1925)

Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290 (2000)

Scavella v. School Bd., -

363 So. 2d 1095 (Fla. 1978)

Sherbert v. Verner,

ee we wee week es aeyhteaaes an

Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly,

309 F.3d 144 (3d Cir. 2002), cert. denied,

ao ad be wk oo-6 o0.0 betes 5 Cv mes 24

United States v. Lee,

ie SO Seis s <n ele we'd

United States v. Virginia,

518 U.S. 515 (1996)

Wallace v. Jaffree,

472 U.S. 38 (1985)

Walz v. Tax Contm'n,

397 U.S. 664 (1970)

Widmar v. Vincent,

a ee oe ew iws 25

Zelman v. Simmons-Harris.

536 U.S. 639 (2002) passim

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I

Fla. Const. Decl. of Rts. § 6 (1885)

Fla. Const. art. I, § 3 (1968)

Pes CONE. GUE, TEE, © Fe CEE ovo cewccccencsaves 3, 20

Fla. Const. art. VI, § 6 (1885)

Maine Const. art. VIII, pt. 1 § 1

STATUTES, LAWS AND RULES

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Section 239.67(4) (1967)

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BO CGN, FU UND soccer ctvcuvesessesitnds a

Section 1002.38(1), Fla. Stat.

Section 1002.38(2)(a)

Section 1002.38(3)(b), (4)(3), G), Fla. Stat

Section 1002.39(6)(f), Fla. Stat.

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Section 1002.55, Fla. Stat. .......-ssecsscsescccccores 6

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Section 1009.67, Fla. Stat......... LR re or eas) 4

PE See Fs FO ON bake nb KA cere we cee eleci kas 5

co es re er ere ry 5

Section 1009.89(3), Fla. Stat.

Section 1009.891(3), Fla. Stat.

ME. REV. STAT. ANN. tit. 20, § 2951(2)

1955 Fla. Laws 231

1955 Fla. Laws 572

1965 Fla. Laws 1683

1968 Fla. Laws 240

2006 Fla.

OTHER AUTHORITIES

Nathan A. Adams, IV, Pedigree of an Unusual Blaine

Amendment: Article I, Section 3 Interpreted and

Implemented in Florida Education,

alt. COMED ss és oo ccbanvscebecseceses 2-4

Sister Mary Alberta, A Study of the Schools

Conducted by the Sisters of St. Joseph of the Diocese

of St. Augustine, Florida, 1866-1940 (Aug. 1940)

(unpublished M.A. thesis, University of Florida)

HARRY GARDNER CUTLER, HISTORY OF FLORIDA:

A MINE CEDADD vc cacccccccovacctcveaces ves

THOMAS EVERETTE COCHRAN, HISTORY OF PUBLIC

SCHOOL EDUCATION IN FLORIDA (1921)

Fla. Dep’t of Educ., Opportunity Scholarship Program

June Quarterly Report (2006) available at https://www.

floridaschoolchoice.org/Information/OSP/quarterly_

reports/osp_report_jun2006.pdf

MICHAEL J. MCNALLY, CATHOLIC PARISH LIFE ON

FLORIDA’S WEST COAST, 1860-1968 (1996)

Robert B. Rackleff, Anti-Catholicism and the Florida

Legislature 19] 1-19, 50 FLA. HIST. Q. 352 (1972) ........ 3

Reading and Mathematics, Grades 3 & 12 (May 1,

2006) available at http://fcat.fldoe.org/pdf/06gr3 gr12

mediapacket.pdf

INTEREST OF THE AMICI

Florida Governor Jeb Bush and the Florida State Board of

Education (“State Board”) respectfully submit this Brief as amici

curiae pursuant to Sup. Ct. R. 37.2(a).' Like the State of Maine,

the State of Florida has a long tradition of enabling students to

attend the private religious or non-religious schools of their

choice on public scholarships. However, unlike Maine, Florida

has sought to perpetuate this tradition for most of its history

because Florida respects the choices of students and their

parents, considers discrimination against a class of persons

solely because of their religious affiliation unjustifiable, and

promotes sound secular objectives such as educational

achievement.

Amici curiae have an interest in this Court’s consideration

of whether the Maine Supreme Court’s interpretation of the First

Amendment of the United States Constitution is consistent with,

among other decisions of this Court, Church of Lukumi Babalu

Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), and Locke v.

Davey, 540 U.S. 712 (2004), because several crucial neutral

scholarship programs rooted in Florida’s educational heritage

may be overturned based on a similar construction of the

Constitution by the Florida First District Court of Appeal. The

Florida appellate court struck a neutral K-12 scholarship

program under Florida’s Blaine amendment because religious

schools participated and held its action consistent with the

federal Free Exercise and Equal Protection Clauses. See Bush v.

Holmes, 886 So. 2d 340 (Fla. 1st Dist. Ct. App. 2004) (en banc)

aff'd in part, 919 So. 2d 392 (Fla. 2006). Florida’s Blaine

amendment, as interpreted by the Florida appellate court, is

'Petitioners filed a blanket consent to the filing of briefs amici curiae and

respondents have granted consent by letters filed with this Court. This brief

was not authored in whole or in part by counsel for a party, and no person or

entity other than the amici curiae or their counsel made a monetary

contribution to the preparation of the brief.

—

l

identical in effect to ME. REV. STAT ANN. tit. 20, § 2951(2). See

Anderson v. Town of Durham, 895 A.2d 944 (Me. 2006).

The Early History of Neutrality in Florida

Locke indicates that historical tradition is an important

factor in determining whether an exclusionary public scholarship

program on the basis of religion falls within the “play in the

joints” between the federal religion clauses. See 540 U.S. at

722-23. Unlike in Locke, neutral educational scholarship funding

has deep historical roots in both Maine and Florida. Florida’s

tradition dates back to the early-1800s, when the educational

system was almost exclusively private and sectarian. Indeed,

religious schools were virtually the only schools in Florida until

the Civil War and, as such, the little public funding that existed

for education was shared with them. See HARRY GARDNER

CUTLER, HISTORY OF FLORIDA: PAST AND PRESENT 222-23

(1923). Even after the ratification of the Constitution of 1868,

when Florida began to distinguish more carefully between public

and private schools, the line was blurred. Private. religious

schools received public funding and it was not uncommon for a

religious school to be designated as a public school. THOMAS

EVERETTE COCHRAN, HISTORY OF PUBLIC-SCHOOL EDUCATION

IN FLORIDA 52 (1921); see also Sister Mary Alberta, A Study of

the Schools Conducted by the Sisters of St. Joseph of the

Diocese of St. Augustine, Florida, 1866-1940, at 40 (Aug. 1940)

(unpublished M.A. thesis, University of Florida).’

Neutral public funding for parochial education continued

even after Florida adopted its post-Reconstruction Constitution

of 1885, incorporating the State’s first Blaine amendment and

*For additional historical information about Florida’s public funding of

religious education, see Nathan A. Adams, IV, Pedigree ofan Unusual Blaine

Amendment: Article I, Section 3 Interpreted and Implemented in Florida

Education, 30 NOVA L. REV. 1 (2005).

2

enacting the separate but equal educational doctrine. Fla. Const.

Decl. of Rts., § 6 (1885) (‘No preference shall be given by law

to any church, sect or mode of worship and no money shall ever

be taken from the public treasury directly or indirectly in aid of

any church, sect or religious denomination or in aid of any

sectarian institution.”); Fla. Const. art. XII, § 12 (1885) (“White

and colored children shall not be taught in the same school, but

impartial provision shall be made for both.”). Neutral public

finding did not lapse until the 1910s. See Alberta, supra, at 41-

42 (Duval County erected a school building for the Sisters of

Saint Joseph to conduct a common school seven years after

enactment of the 1885 Constitution, which they did not

“surrender” until around 1914); see also id. at 42-43 and

MICHAEL J. MCNALLY, CATHOLIC PARISH LIFE ON FLORIDA’S

WEST COAST, 1860-1968 149 (1996) (Pasco County erected a

school building for Saint Anthony’s in 1892 and Sacred Heart in

1916).

Demonstrating the linkage of Florida’s Blaine amendment

with bigotry, Florida began to enforce its Blaine amendment as

anti-Catholic nativism peaked in the run up to World War I. See

MCNALLY, supra, at 74 (Bishop Michael J. Curley wrote, “We

Catholics . . . are victims of organized vilification and the

government itself through the mails takes a hand by the

distribution of lewd and lascivious anti-Catholic filth.””). The

press, legislature, governor and secret societies joined in anti-

Catholic, anti-immigrant, and anti-black rhetoric. For example,

the legislature adopted An Act Prohibiting White Persons from

Teaching Negroes in Negro Schools aimed at the Sisters of St.

Joseph and a Convent Inspection Bill. Id. at 74-75 (Convent

Inspection Bill); Robert B. Rackleff, Anti-Catholicism and the

Florida Legislature 1911-1919, 50 FLA. HIST. Q. 352, 353

(1972).’ In one of the most thoroughly prejudicial speeches of

the period fanning nativist fears, Governor Sidney J. Catts even

warned that German Catholics in Florida were planning an

armed-Negro insurrection for German Kaiser Wilhelm II, after

which the Pope purportedly would relocate the Vatican to

Florida and take political control. See MCNALLY, supra, at 78-

79.

Neutrality After World War II ~

In the years following World War II, nativism subsided,

and the Florida Legislature began approving the precursors to

today’s publicly-funded school choice programs, beginning with

post-secondary education and expanding to pre-K through grade

12 education. In the 1950s, the Legislature approved public

scholarships or loans for students to study teaching or nursing at

any eligible Florida institution, including religious ones. Ch.

29726 § 2, 1955 Fla. Laws 231, 232-33 (teaching); Ch. 29819 §

2, 1955 Fla. Laws 572, 573-74 (nursing). The Legislature

expanded these professional scholarship programs in succeeding

years. See, e.g., Fla. Stat. §§ 1009.54, 1009.57-.62, 1009.66,

1009.67 (2005).

In 1961, the Legislature enacted the precursor ‘9 the

current-day Corporate Income Tax Credit (“CITC”) Scholarship

Program. The 1961 Program was designed to assist

economically disadvantaged Florida high school graduates with

college tuition. 1961 Fla. Laws 1091, 1092. It drew no

distinction between religious and non-religious colleges. Today,

the CITC Program enables K-12 students to attend the private

religious or secular school of their parents’ choice. Fla. Stat. §

1002.20(6) (2005). It provides income tax credits to

corporations for contributing to scholarship funding

*Both the adoption of the Blaine amendment and the nativism of the 1910s

coincided with Catholic immigrant influxes into the State. See Adams, supra

at 21-23, 29-34.

organizations, which, in turn, offer scholarships to economically

disadvantaged students. See Fla. Stat. § 220.187 (2005).

In 1963, the Florida Legislature established the first need-

based loan assistance program, benefitting eligible residents

attending the public or private religious or non-religious colleges

of their choice. 1963 Fla. Laws 1176, 178, codified at Fla. Stat.

§ 239.67(4) (1967). Florida post-secondary educational loan

assistance has since grown and diversified. See, e.g., Fla. Stat.

§§ 1009.50, 1009.52, 1009.89(3), 1009.891(3), 1009.73, 1009.72

(2005).

In 1965, the Legislature approved Florida Regents

Scholarships, the precursor to today’s Flonda Bright Futures

Scholarship Program (“Bright Futures’’). The Florida Regents

Scholarship Program provided state funds to eligible high school

graduates to assist them in paying tuition costs at the accredited

religious or non-religious college of their choice. 1965 Fla.

Laws 1683, 1684, codified at Fla. Stat. § 239.451 (1967). Bright

Futures, created in 1997, is a publicly-funded merit scholarship

program that allows recipients to apply their scholarship money

toward tuition at an eligible religious or non-religious college to

pursue the degree of the recipient’s choosing. Fla. Stat. §y

1009.53, 1009.533 (2005).

Florida again demonstrated its commitment to religious

neutrality in 1968, when the Legislature created a K-12 voucher

program, enabling disabled students to attend private religious

or non-religious schools. 1968 Fla. Laws 240, 243; Scavella v.

School Bd. of Dade County, 363 So. 2d 1095, 1098 (Fla. 1978).

This program was replaced by the McKay Scholarship Program

(“McKay”). Fla. Stat. § 1002.39. McKay provides for payment

by individual warrant made payable to eligible students’ parents.

See Fla. Stat. § 1002.39(6)(f) (2005).

The Florida Legislature enacted the Opportunity

Scholarship Program in 1999, benefitting children attending K-

12 public schools that received a failing grade for two out of four

years. Fla. Stat. § 1002.38(2)(a)1. The OSP allowed parents to

send their children to another public school or, like McKay, to

receive a watrant for tuition at a private religious or non-

religious school. Fla. Stat. § 1002.38(1) (2005). Participating

schools had to agree, among other things, to “accept scholarship

students on an entirely random and religious neutral basis” and

not to “compel any student attending . . . on an opportunity

scholarship to profess a specific ideological belief, to pray, or to

worship.” Fla. Stat. §§ 1002.38(3)(b), (4)(e), (j) (2005).

Under the OSP, eligible students enrolled in roughly equal

numbers in eligible non-religious (45%) and religious (55%)

schools. See OSP June Quarterly Report (2006) available at

https://www. floridaschoolchoice.org/Information/OSP/

quarterly reports/osp report _jun2006.pdf. Economically

disadvantaged racial minorities were the primary beneficiaries.

Roughly 93.9% of enrollees in the OSP were Hispanic-American

or African-American, and 72% of enrollees qualified for free or

reduced-price lunches. /d.

The OSP impreved educational achievement among

Florida’s most needy populations. Hispanic-Americans and

Afncan-Americans experienced the most dramatic gains in

educational achievement in Florida since 2001. For example,

among third graders, 68% of Hispanic-Americans and 54% of

African-Americans are reading at or above grade level in 2006,

compared with 44% of Hispanic-Americans and 29% of A frican-

Americans in 2001. See Reading and Mathematics, Grades 3 &

12 (May 1, 2006) available at http://fcat.fldoe.org/pdf/

O6gr3gr12mediapacket.pdf. In mathematics, among third

graders, 68% of Hispanic-Americans and 54% of African-

Americans are on grade level in 2006, compared with 44% of

Hispanic-Americans and 29% of African-Americans in 2001. /d.

Most recently, the legislature enacted Florida’s Voluntary

Pre-kindergarten Program, Fla. Stat. §§ 1002.53, 1002.55,

1002.61 2005, a school choice program providing free pre-

kindergarten education to any four-year old child in Florida. As

in both Maine’s voucher program and Florida’s McKay Program

and the recently stricken Opportunity Scholarship Program

(“OSP”) (as discussed infra), parents are responsible for

selecting a school, whether religious or non-religious, for their

children and then restrictively endorsing the warrant to the

chosen school. See Fla. Stat. § 1002.39(6)(f) (2005).

Recent Threats to Neutrality in Florida

Florida’s First District Court of Appeal, relying upon

Locke v. Davey, 540 U.S. 712 (2004), struck down under

Florida’s Blaine amendment the participation of private schools

in the OSP (the “private OSP option”), notwithstanding the

Program’s educational success. See Bush v. Holmes, 886 So. 2d

340, 360 (Fla. 1st DCA 2004) (citing Fla. Const. art. I, § 3

(1968)) (en banc), aff'd in part, 919 So. 2d 392 (Fla>2006). That

court held that the Free Exercise Clause of the First Amendment

to the United States Constitution does not require Florida to

afford religious entities equal participation in programs of

general applicability that are both neutral towards religion and

that have a secular purpose. /d. The Florida Supreme Court

affirmed the ruling on other grounds. Bush v. Holmes, 919 So.

2d 392, 413 (Fla. 2006).

Because the First District Court of Appeal’s decision was

premised upon reasoning quite similar to the Maine Supreme

Court’s in the instant case, Florida’s remaining scholarship

programs outlined above are vulnerable unless this Court corrects

the misinterpretation of Locke by the Maine Supreme Court and

Florida’s First District Court of Appeal. Because of the risk to

these neutral educational scholarship programs, amici curiae

urge this Court to grant the petition for wnt of certiorari to settle

the important federal questions that petitioners have raised in the

interest of student and parental choice, religious neutrality, and

educational achievement in all states. Amici curiae would

rephrase the second question presented as follows:

Does this Court’s decision in Locke v. Davey, 540

U.S. 712 (2004), permit Maine to exclude

religious persons entirely from an otherwise

neutral, generally available, public educational

scholarship program with a secular purpose?

SUMMARY OF ARGUMENT

Maine’s voucher program discriminates on its face

against persons solely because they are religious. This Court in

Locke upheld the Washington Promise Scholarship Program

because, although students could not recive scholarships to

pursue a clerical degree, they could pursue every other degree

program at devoutly religious schools even while taking classes

in devotional theology. The Maine Supreme Court misinterpreted

Locke to hold that Maine could prohibit altogether that which this

Court said rendered the Promise Scholarship Program

constitutional — the Program went “a long way toward including

religion in its benefits.” 540 U.S. at 724. The court also applied

the wrong standard of constitutional review.

Maine’s withholding of tuition vouchers from parents

who want to send their children to religious schools, contrary to

the state’s historic practice, demonstrates hostility to religion to

the objective observer, rendering it unconstitutional under the

First and Fourteenth Amendments. This disparate treatment

alone, without civil or criminal sanctions, a “violation of their

religion,” or anything more, violates the Free Exercise and Equal

Protection Clauses. Maine’s discriminatory statute is identical

in effect to Florida’s Blaine amendment, as interpreted by

Florida’s appellate court. Maine’s alleged interest in seeking to

avoid excessive entanglement with religion can be achieved

through means far less restrictive and, thus, more narrowly

tailored than excluding otherwise eligible religious persons from

a K-12 scholarship program.

ARGUMENT

Florida’s First District Court of Appeal extended Locke

far beyond the limited application intended. See Bush, 886 So.

2d at 360. Now, the Supreme Court of Maine has done the same

in upholding a statute that is facially discriminatory towards

religious persons merely because they are religious. See

Anderson, 895 A.2d at 961. ME. REV. STAT ANN. tit. 20, §

2951(2), states, “A private schoo] may be approved for the

receipt of public funds for tuition only if it... (2)... is

nonsectarian in nature in accordance with the First Amendment

of the United States Constitution.” - See Anderson, 895 A.2d at

949. The statute guides the implementation of Title 20-A, which

authorizes the State’s Department of Education and school

districts to build their own high schools, to contract with other

school district or eligible private schools, or, when there is no

high school in a district, to use public funds to pay the tuition

costs at an eligible private school of the parents’ choice. See id.

at 948.

Prior to 1980, Maine, like Florida, had a long history of

allowing public funds to be used for tuition payments at

approved sectarian schools. See id. Maine abandoned this

tradition in 1980, when the legislature adopted ME. REV. STAT.

ANN. tit. 20, § 2951(2), in response to the attorney general’s

opinion that the practice violated the Establishment Clause. See

id. Upholding the statute despite its improper rationale, see

Zelman v. Simmons-Harris, 536 U.S. 639 (2002), the Supreme

Court of Maine reasoned, like the Florida First Distnict Court of

Appeal, that Locke permitted the legislature to exclude religious

_persons from the state K-12 voucher program without tnggering

a federal free exercise, establishment or equal protection

violation. See Anderson, 895 A.2d at 961. Both state courts have

misinterpreted the requirements of the First and Fourteenth

Amendments of the United States Constitution.

AS INTERPRETED BY MAINE’S SUPREME

COURT, ME. REV. STAT. ANN. TIT. 20, § 2951(2)

VIOLATES THE FIRST AND FOURTEENTH

AMENDMENTS OF THE UNITED STATES

CONSTITUTION.

A law that is not neutral and withholds a generally

available, public benefit from an individual on the basis of

religion is subject to strict scrutiny under the Free Exercise

Clause of the United States Constitution. See Lukumi, 508 U.S.

at 546; Everson v. Board of Educ., 330 U.S. 1, 16 (1947)

(holding that New Jersey could not withhold the benefits of

general welfare legislation on the basis of an individual's faith or

lack thereof); see also Locke, 540 U.S. at 726-27 (Scalia and

Thomas, JJ., dissenting) (“When the State makes a public benefit

generally available, that benefit becomes part of the baseline

against which burdens on religion are measured[.]’’); Peter v.

Wedl, 155 F.3d 992 (8th Cir. 1998) (strict scrutiny applied to

facially discriminatory law allowing funding for

paraprofessionals to assist disabled children in the classroom so

long as those children did not attend religious schools);

Hartmann v. Stone, 68 F.3d 973 (6th Cir. 1995) (strict scrutiny

applied to Army regulation governing the provision of child care

on base barring providers from engaging in religious practices).

The minimum standard, when assessing a statute’s

neutrality, is that it not be facially discriminatory. Lukumi, 508

U.S. at 533. See also Locke, 540 U.S. at 726 (Scalia and

Thomas, JJ., dissenting) (referring to facial neutrality as a

“necessary condition for free exercise constitutionality’”’) (citing

Lukumi, 508 U.S. at 563). The exception to this rule fashioned by

Maine’s Supreme Court in an effort to apply rational basis

review to the exclusion of eligible religious persons from a K-12

scholarship program, see Anderson, 895 A. 2d at 959, is

unsupported by Locke and other precedent. It may be true that

the Establishment Clause itself discriminates against religion “by

singling it out as the one thing the States cannot establish,” but

399

1]

this simply means that the States have “a compelling interest in

not committing actual Establishment Clause violations.” See

Locke, 540 U.S. at 730 n.2 (Scalia and Thomas, JJ., dissenting)

(emphasis in original). Anderson perpetuates a “shameful

pedigree” of hostility toward religion which this Court should not

hesitate to review and disavow. See Mitchell v. Helms, 530 U.S.

793, 828 (2000).

A. The Maine Supreme Court Has

Misread Locke and Thereby

Permitted Unlawful Discrimination

Against Religious Persons.

Locke supports not the exclusion of religious persons

from Maine’s scholarship program, but their inclusion. This

Court in Locke upheld a Washington scholarship program wholly

different from the one before the Maine Supreme Court.

Washington scholarship recipients were permitted to use an

award to pursue a broad variety of college degrees at

“pervasively religious schools” while taking “devotional

theology courses.” Locke, 540 U.S. at 724-25. They were barred

from using scholarship funds to pursue only an essentially

religious endeavor; i.e., a “degree in theology.” Jd. at 716. In

contrast to Maine and Florida’s tradition of neutral public

funding for K-12 education, this Court affirmed the exclusion of

only the ministry from receiving state dollars on the basis of a

deeply-rooted American tradition manifest in early taxpayer

protests, id. at 722, and state constitutions. Jd. at 723. This

reinforced the Court’s “conclusion that religious instruction is of

a different ilk.” Jd.

Besides clerical college degrees, “there are few areas in

which a state’s antiestablishment interests” justify the type of

exclusion practiced by Maine. Jd. at 722. Education of K-12

schoolchildren does not qualify. As the dissent below pointed

out, “[P]rimary and secondary education . . . is compulsory for all

12

students in Maine, aud in no way constitutes the ‘training for

religious professions’ that uniquely limited the Supreme Court’s

holding in Locke.” Anderson, 895 A.2d at 964 (Clifford, J.,

dissenting). In fact, the very reasons this Court gave in Locke for

why the Promise Scholarship Program was constitutional — that

it permitted the expenditure of scholarships on all but clerical

training in religious and non-religious schools — are precisely

those requiring § 2951(2) to be overturned under the Free

Exercise Clause. 540 US. at 724.

Whereas the use of public funds to support church leaders

has long been considered one of the “hallmarks of ‘established’

religion,” see id. at 722, the question of establishment is not even

debatable in the case of Maine’s school choice program. See

Zelman, 536 U.S. at 655 (holding that an Ohio school choice

program that allowed state tuition vouchers to be used at private

religious schools did not violate the Establishment Clause). Yet

avoiding an establishment was the only compelling governmental

interest that Maine identified as justifying the enactment of §

2951(2), and which the statute itself referenced. As the dissent

below notes, the statute should, therefore, have been stncken

under the court’s prior holding that “[i]f the State’s justification

is based on an erroneous understanding of the Establishment

Clause, its justification will not withstand any level of scrutiny.”

Anderson, 895 A.2d at 963 (Clifford, J., dissenting) (citing

Bagley v. Raymond Sch. Dep’t, 728 A.2d 127, 137-38 (Me.

1999), cert. denied, 528 U.S. 947 (1999)).

The compelling governmental interest that

justified the enactment of section 2951(2) . . . is

no longer operative, and, accordingly, there is no

longer any kind of compelling State interest that

justifies the unequal treatment mandated by

section 2951(2). Section 2951(2) can no longer

withstand strict scrutiny analysis. Further, even if

Locke is read more broadly than its language

13

would seem to allow, and a rational relationship

test 1s applied to the equal protection interests of

the parents, there is no legitimate rationale that

should be considered by the Court to justify the

discrimination manifested in section 2951(2).

See id. at 965; Hartmann, 68 F.3d at 979 (“A program that

violates the Free Exercise Clause cannot be saved by relying on

implausible Establishment Clause concerns.”).

This Court in Locke reaffirmed that there can be “play in

the joints” between the federal religion clauses when there is (1)

a long-standing practice dating to the founding of the republic

excluding public funding for religious training, and (2) a “close

call” as to whether complying with one of the federal religion

clauses could violate the other. See 540 U.S. at 728 (Scalia and

Thomas, JJ., dissenting). It can hardly be said that either Maine

or Florida has any historic practice of excluding religious persons

from educational scholarship programs or that Maine’s pre-1980

practice of using public money to fund tuition vouchers at

religious and non-religious schools was a “close call” on the

Establishment Clause issue. See Zelman, 536 U.S. at 662-63.

Maine and Florida’s historic practice is more like the

“benevolent neutrality” called for in Walz v. Tax Comm'n, 397

U.S. 664, 669 (1970), where the “play in the joints” principle

finds its roots in upholding another firmly-rooted historical

practice, exempting church property from taxation. /d. at 673.

677. Accord Holmes, 886 So. 2d at 388 (Polston, J., dissenting)

(“State action may be permitted within the space of “play in the

joints’ when it is ‘productive of a benevolent neutrality’

according to Walz.”’)

Maine’s Supreme Court hypothesized, even in the wake

of Zelman, that it “remains conceivable” for indirect funding of

scholarship programs in which religious schools participate to

violate the Establishment Clause. See Anderson, 895 A.2d at

14

960. As petitioners argue, this threat is valid only in direct aid,

not indirect aid cases such as this one. See Petition, at 17-19.

But even if this were not true, the mere potential for a violation

of the Establishment Clause is neither a compelling nor rational

basis to justify the discrimination manifest in § 2951(2). Maine’s

Supreme Court concedes even in this case that a state is

“permitted to pass a statute authorizing some form of tuition

payments to religious schools[.]” Anderson, 895 A.2d at 961. If

§ 2951(2) were stricken, Maine’s voucher system would not be

unconstitutional, but simply begin functioning as it had prior to

1980. See id. at 948 (citing Op. Me. Att’y Gen 80-2). Anderson

discusses no instance from 1879 to 1980, when the scholarship

program led to an actual violation of the Establishment Clause.

Cf. id at 962 (Clifford, J., dissenting) (“The system worked very

well[.]””). Accordingly, the Maine Supreme Court has

misinterpreted Locke and permitted unlawful discrimination

against religious persons.

B. The Obiective Observer Would

Conclude that ME. REV. STAT. ANN. tit.

20, § 2951(2) Manifests Hostility

Toward Religion.

Maine’s exclusion of eligible religious persons from a

tuition scholarship program broadcasts an unmistakable signal to

the objective observer, contrary to the First Amendment, that

religious persons are second-class citizens and religious schools

are not the equal of others in the pursuit of an educated citizenry.

According to Justice O’ Connor, the objective observer is similar

to the “reasonable person” in tort law, who “‘is not to be

identified with any ordinary individual,” but is “‘rather a

personification of a community ideal of reasonable behavior,

determined by the [collective] social judgment.’” Capitol Sq.

Rev. & Advisory Bd. v. Pinette, 515 U.S. 753, 779-80 (1995)

(O’Connor, Souter and Breyer, JJ., concurring in part and

concurring in judgment) (citing W. KEETON, KEETONON LAW OF

~~

15

TORTS 175, 5th ed. 1984). This hypothetical observer is

“presumed to be familiar with the history of the government’s

actions and competent to learn what history has to show.” See

McCreary County, Ky. v. ACLU, _ U.S. _, 125 S. Ct. 2722,

2737 (2005) (citing Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.

290, 308 (2000) (objective observer is familiar with

“implementation of” government action) (quoting Wallace v.

Jaffree, 472 U.S. 38 (1985) (O’Connor, J., concurring in

judgment); Edwards v. Aguillard, 482 U.S. 578, 595 (1987)

(inquiry looks to “the historical context of the statute .. . and the

specific sequence of events leading to [its] passage”); Pinette,

515 U.S. at 780 (“[ T]he reasonable observer in the endorsement

inquiry must be deemed aware of the history and context of the

community .. . in which the religious display appears.”)); see

also Good News Club v. Milford Cent. Sch., 533 U.S. 98, 118

(2001) (warning against government sending a message of

hostility toward the religious viewpoint). Consequently, the

objective observer would know of Maine’s historic neutral public

scholarship practice.

_ The objective observer would also be acquainted with

“the text, legislative history, and implementation” of § 2951(2),

see Santa Fe, 530 U.S. at 308 (citation omitted); Maine Const.

art. VIII, pt. 1 § 1 (authorizing state grants for the founding of

private schools including religious ones); this Court’s precedent,

including the invalidation by Ze/man of the singular rationale for

Maine’s exclusion, see McCreary, 125 S. Ct. at 2737; Pinette,

515 U.S. at 782; and realize the type and scope of students

affected by Anderson is much different than in Locke. In the

latter, only students pursuing post-secondary training for a

ministerial career were treated differently, see Locke, 540 U.S. at

722, whereas § 2951(2) treats differently all students pursuing a

compulsory K-12 education at religious schools. See Anderson,

895 A.2d at 948. The sheer number of students precluded from

receiving an education at the school of their choice, the amount

of the scholarship over a number of years, and the number of

16

schools and curricular areas affected in Maine is greater than in

Locke. Accord Petition, at 29. Whereas this Court has

considered “training for religious professions and training for

secular professions . . . not fungible,” the Same cannot be said of

a religious or secular K-12 education when it comes to preparing

children for post-secondary education or careers. Locke, 540

U.S. at 721. The education has an essentially secular purpose, as

opposed to clerical training. Consequently, the objective

observer would conclude that § 2951(2) violates the

Establishment Clause.

ME. REV. STAT ANN. tit. 20, § 2951(2) is more

discriminatory than even the city ordinances at issue in Lukumi

at 546, where the City of Hialeah had enacted laws in effect

banning the ritualistic sacnfice of animals and targeting the

Santeria. See id. at 527-28. This Court found that the ordinances

in Lukumi, as in this case, had twin defects: (1) they were not

facially neutral and (2) they lacked general applicability, see id

at 542, 545-46; however, this Court had to go beyond the text of

the ordinances to examine their object in Lukumi. Cf ia. t557-

58 (Scalia and Rehnquist, JJ., concurring in part and concurring

in judgment) (distinguishing the defect of lack of neutrality as

applying “‘primarily to those laws that by their terms impose

disabilities on the basis of religion” from the defect of lack of

general applicability which applies “primarily to those laws

which, though neutral in their terms . . . target the practices of a

particular religion for discriminatory treatment[.]’’). In this case,

no searching inquiry into the purposes behind § 2951(2) is

necessary. Its text lacks even the pretense of neutrality as it

explicitly disqualifies religious schools from participating in the

tuition program. This Court could stop there and overrule the

Maine Supreme Court, but looking further for the indicia of

religious animus discussed in Lukumi, 508 U.S. at 534-35, 540,

would only support the ruling that § 2951(2) is nonneutral. For

example, Maine had a tradition of neutral public funding for

education interrupted by the statute; “[t]he specific series of

17

events leading to the enactment or official policy in question”

were premised exclusively upon federal Establishment Clause

concerns; and the legislative and administrative history of §

2951(2) reveal that Maine substituted post hoc rationalizations

when the original rationale was vacated. Jd. at 540. These

objective indicia bear on the statute’s nonneutrality and

discriminatory object. Jd.

“{N]o law that is nonneutral . . . can be thought to be of

general applicability.” Jd. at 558 (Scalia and Rehnquist, JJ.,

concurring in part and concurring 1n judgment). In addition, as in

Lukumi, § 2951(2) is’ substantially overinclusive and

underinclusive. See id. at 538-40, 543-46. Section 2951(2) is

undennclusive because the statute is inadequate to “maintain{[]

diversity within the public schools[] and avoid[] involvement in

discrimination in admissions and hiring[.]” See Anderson, 895

A.2d at 960. Petitioners and the dissent are correct that the court

should never have considered post hoc justifications for Maine’s

exclusion. See Petition at 13-16, see also id. af 965 (Clifford, J.,

dissenting). In addition, the Court’s consideration was

incomplete. Section 2951(2) “failfed] to prohibit nonreligious

conduct that endangers these interests in a similar or greater

degree[.]” Lukumi, 508 U.S. at 543. Thus, the conclusion is

inexorable that § 2951(2) is unconstitutional because it pursues

“governmental interests only against conduct motivated by

religious belief.” Jd. at 545.

In addition, § 2951(2) is unconstitutional because it is

overinclusive insofar as it precludes students from using

scholarships at religious schools complying with the state’s

academic standards, curriculum, record-keeping requirements,

and anti-discrimination laws. Cf Anderson, 895 A.2d at 961. To

the extent these are legitimate government interests proper for the

court to consider, “they could be addressed by restrictions

stopping far short of a flat prohibition{.]” Locke, 508 U.S. at 538.

Rather than excluding religious persons from public programs in

18

the interest of avoiding excessive entanglement, Maine could

have adopted, for example, generally applicable rules and

performance criteria for eligible private schools. See, e.g.,

Chapter 2006 Fla. Laws ch. 75 (2006). Because § 2951(2) is not

narrowly tailored to achieve Maine’~ only stated interest, it

amounts to a poorly shrouded “‘religious gerrymander’. . . an

impermissible attempt to target petitioners and their religious

practices.” Lukumi, 508 U.S. at 535. Accord Peter, 155 F.3d at

997 (ban on funding for paraprofessionals to assist disabled

children attending religious schools was not narrowly tailored

and unconstitutional); Hartmann, 68 F.3d at 979 (ban on child

care providers engaging in religious exercise was not the “least

restrictive means necessary to prevent an unconstitutional

entanglement with religion”). The objective observer would see

through it and conclude that § 2951(2) manifests hostility toward

religion.

ad Prohibiting Eligible Persons from

Receiving Public Scholarships to

Attend Religious Schools Violates the

Free Exercise and Equal Protection

Clauses.

Maine’s withholding of tuition vouchers from parents

who want to send their children to religious schools violates the

constitution. The disparate treatment alone, without criminal or

civil sanctions, “violations of religion,” or anything more,

violates the Free Exercise and Equal Protection Clauses. Even

if there was no anti-religious animus underlying Maine’s statute,

ee

[it does not] matter that a legislature consists entirely of the

purehearted, if the law it enacts in fact singles out a religious

practice for special] burdens.’” Locke, 540 U.S. at 732 (Scalia and

Thomas, JJ., dissenting) (citing Lukumi, 508 U.S. at 559).

Discrimination against persons on the basis of religion is no more

defensible than on the basis of race, nationality, or gender. In

Florida, racial and religious discrimination even have a common

constitutional heritage in the Constitution of 1885. See Fla.

19

Const. art. XII, § 12 (1885) (separate but equal doctrine) and Fla.

Const. art. VI, § 6 (1885) (Blaine amendment).

) Fe The Imposition of Criminal

Sanctions Is Wholly Unnecessary

to Find a Free Exercise or Equal

Protection Clause Viclation.

That § 2951(2) does not impose a civil or criminal

penalty on the citizens of Maine is wholly unnecessary to find a

Free Exercise or Equal Protection Clause violation. It suffices to

trigger strict scrutiny that the statute is not neutral and facially

precludes religious schools from participating in a generally

available educational program solely because of their religious

affiliation. See Sherbert, 374 U.S. at 404 (“fit is too late in the

day to doubt that the liberties of religion and expression may be

infringed by the denial of or placing of conditions upon a benefit

or privilege.”); Employment Div., Dep’t of Human Res. v. Smith,

494 U.S. 872 (1990) (facially neutral laws that burden religion

are constitutional, but not their opposite); see also Locke, 540

U.S. at 731 (Scalia and Thomas, JJ., dissenting) (“The indignity

of being singled out for special burdens on the basis of one’s

religious calling is so profound that the concrete harm produced

can never be dismissed as insubstantial.”); Hartmann, 68 F.3d at

979 n.4 (a categorical ban on child care providers engaging in

religious exercise was unconstitutional without proof of a

substantial burden on religious exercise). Nevertheless,

misinterpreting Locke, the Supreme Court of Maine held that,

because § 2951(2) did not impose sanctions, force students to

choose between getting a public benefit and adhering to their

religion, or prevent parents from sending their children to

religious schools, any,manifest religious hostility in law was

negligible and, in effect, not constitutionally cognizable. See

Anderson, 895 A.2d at 956, 959 (explaining that § 2951(2)

imposes no impermissible burden on religion).

Whatever the relevance of assessing the degree of

religious disfavor inherent in excluding ministerial majors from

a neutral scholarship program, conditioning a constitutional

violation in this case on the imposition of penalties beyond

disparate treatment is inappropriate. In no other context besides

scholarships for educating ministers has this Court required

criminal penalties as a litmus test for prohibiting the exclusion of

persons from an otherwise generally available educational

benefit. See Locke, 540 U.S. at 732 (Scalia and Thomas, JJ.,

dissenting). For example, it was enough that African-American

students and females were unjustly excluded from public schools

without a compelling (racial discrimination) or important (gender

discrimination) governmental interest. See Brown 1. Bd. of

Educ., 347 U.S. 483 (1954) (overturning segregation of public

school children based on race and the doctrine of “separate but

equal”); United States v. Virginia, 518 U:S. 515 (1996)

(overturning exclusion of women from public military academy).

In addition, although this Court has found that civil or criminal

penalties imposed upon religious practice may lead to a

constitutional violation, this Court has not deemed the penalties

either sufficient, see, e.g., United States v. Lee, 455 U.S. 252

(1982) (Amish forced to pay tax penalties nowithstanding

religious claim), or necessary. See Sherbert, 374 U.S. at 403-04

(“[I]t is true that no criminal sanctions directly compel appellant

to work a six-day week. But this is only the beginning, not the

end, of our inquiry.”).

Yet, even if the degree of discrimination were somehow

relevant to the outcome of this case, the effect of § 2951(2) is far

more discriminatory than Washington’s Promise Scholarship

Program, see Locke, 540 U.S. at 722, and, indeed, than the statute

at stake in Lukumi. See infra at 17. Once more, the state’s

counterbalanced interest in preventing excessive entanglement is

weaker than Washington’s interest in not funding clerical

education consistent with historic practice. Rather than the

“mild” discrimination evident in Locke, § 2951(2) imposes a

special disability based only on religion on a whole class of

persons who have no choice but to enroll their children in K-12

education. Davey had the choice to pursue post-secondary

education and a devotional theology degree. If he did not,

Washington could not enforce truancy laws against him, but

Maine would against the children involved in this case. Maine’s

Supreme Court hypothesized that parents acting on their religious

beliefs who desired to school their children in their faith tradition

could still do so, albeit at an increased cost to themselves. See

Anderson, 895 A.2d at 956 (citing Eulitt v. Maine, Dep't of

Educ., 386 F.3d 344, 354-55 (1st Cir. 2004)). But we know that

many would altogether lack the means. For them, Maine’s

exclusion is total without exception from state truancy laws. The

rest may be forgiven for viewing as a “civil penalty” the annual

school fuition payments only they must render.

2. A Statute Violates the Free

Exercise Clause Through Hostility

Towards Religious Practice,

Regardless of Whether the Statute

Compels Members of Any Religion

to Violate the Core Tenets of Their

Faith.

The Supreme Court of Maine pointed out that none of the

parties to Anderson asserted that they were bound by their

religious beliefs to send their children to religious schools or to

prevent their children from attending secular schools, and refused

to extend free expression to an activity that was not

fundamentally religious. See Anderson, 895 A.2d at 959.

Although petitioners’ religious beliefs did not mandate sending

their children to sectarian schools or proscribe sending their

children to secular schools, their desire to send their children to

religious schools was certainly an expression of sincerely-held

religious convictions. See id. at 950 (petitioners sent their

children to religious school “because the school promotes their

sincerely held beliefs as Catholics”); see also Locke, 540 U.S. at

722 (citing the petitioner’s statement that his “religious beliefs

were the only reason for [him] to seek a college degree”);

Proverbs 22:6 (King James) (“Train up a child in the way he

‘should go: and when he is old, he will not depart from it.”). It

was not a mere preference or choice as between one public

school and another. Ordinarily, this Court has required far less

than petitioners’ kind of religious conviction to find a

constitutional violation when persons were granted unequal

access to educational benefits. See Virginia, 518 U.S. at 523

(female applicants “want[ed] to attend” a publicly-funded

military academy).

Requiring adherents to establish “violations of their

religion” as a condition of stating a constitutional claim for

unequal treatment invariably disadvantages religions, contrary to

the Establishment Clause, such as many forms of Christianity

which provide for the freedom of believers subject to their

consciences. See Sherbert, 374 U.S. at 404 (“‘[I]f the purpose or

effect of a law is to impede the observance of one or ali religions

or is to discriminate invidiously between religions, that law is

constitutionally invalid even though the burden may be

399

characterized as being only indirect.’”) (citing Braunfeld v.

Brown, 366 U.S. 599, 607 (1961)). It is also directly contrary to

this Court’s warning in Smith, that government’s ability to carry

out public policy ‘“‘cannot depend on measuring the effects of

governmental action on a religious objector’s spiritual

development.’” 494 U.S. at 885 (citing Lyng v. Northwest Indian

Cemetery Protective Ass'n, 485 U.S. 43°, 451 (1988)).

Repeatedly, this Court has said that it is no* within the judicial

ken to “determine the place of a particular b—..ef in a religion or

the plausibility of a religious claim.” Ja « 887.

The First Amendment “guarantees free exercise of

religion, and when the State exacts a financial penalty . . . for

religious exercise — whether by tax or by forfeiture of an

23

otherwise available benefit — religious practice is anything but

free.” See Locke, 540 U.S. at 731 (Scalia and Thomas, JJ.,

dissenting) (emphasis original). Protected religious exercise is

not merely the expression of required orthodoxy, as intimated by

the Maine Supreme Court, but also of parents’ sincere belief that

schooling children in their faith tradition is important. See

Pierce v. Soc 'y of Sisters, 268 U.S.-510 (1925).* Tw be sure, this

is not a case as in Pierce, where a state denied pupils access

altogether to religious schools, but neither is this a case, as the

Supreme Court of Maine characterizes it, merely about

petitioners’ paying more to exercise a privilege. Consistent with

Lukumi, Smith, and the raft of this Court’s precedent overturning

racial and gender discrimination and viewpoint discrimination in

public forums, petitioners seek no special treatment — just access

to a generally available public tuition program. Specially

disadvantaging them, without more, violates the Free Exercise

and Equal Protection Clauses. See Smith, 494 U.S. at 877 (“The

government may not. . . impose special disabilities on the basis

of religious views or religious status[.]”) (citing, inter alia,

McDaniel v. Paty, 435 U.S. 618 (1978)); Sherbert, 374 U.S. at

404; accord Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly, 309

F.3d 144 (3d Cir. 2002), cert. denied, 539 U.S. 942 (2003).

The. Supreme Court of Maine’s assertion that no

fundamental religious right is violated when the state refuses to

fund tuition at religious schools, see Anderson, 895 A.2d at 959,

also undermines Maine’s contention that the prohibition is

necessary to prevent excessive entanglement. If the parents are

not expressing their religious beliefs when they send their

children to religious schools, then Maine’s assertion about

preventing excessive entanglement is disingenuous. If the

“Demand for the state to fund a private religious education when students are

not otherwise eligible would be an entirely different case. See Children A&B

v. Florida, 355 F. Supp. 2d 1298 (N.D. Fla. 2004), aff’d, 140 Fed. Appx 845

(11th Cir. 2005).

24

parents are expressing their religious convictions when they

choose to send their children to a religious school, then Maine is

inhibiting their free expression of religion. Maine cannot have

it both ways. The Maine Court’s reasoning serves not to support

its result, but only to underscore the pretextual nature of Maine’s

rationale for § 2951(2).

1 Maine’s Discriminatory Statute

Is Identical in Effect to Florida’s

Blaine Amendment.

In Anderson, the Maine Supreme Court noted that the

Maine Constitution does not include a Blaine amendment. 895

A.2d at 956n.13. Ironically, the legislature in James G. Blaine’s

home state rejected the amendment because of the number of

religious schools receiving state funding. See Petition, at 26.

Following Ze/man, the court might, therefore, have inferred from

this that the state lacked even a hypothetical compelling or

rational interest in enforcing § 2951(2). See Maine Const. art.

VIII, pt. 1 §1; see also Holmes, 886 So. 2d at 559-60 (suggesting

a state may require greater separation than the Establishment

Clause). But see Widmar v. Vincent, 454 U.S. 263, 277 (1981)

(“{T}he state interest asserted here — in achieving greater

separation of church and State than is already ensured under the

Establishment Clause of the Federal Constitution — is limited by

the Free Exercise Clause[.]”). Instead, the Maine Supreme Court

took this as a positive sign and went on to approve the exclusion

of religious schools from a public tuition scholarship program.

A special disability imposed solely on the basis of

religious status as a result of a state Blaine amendment such as

Flonda’s would be an additional reason to overrule a decision

such as Holmes. See Art. 1 § 3 (1968) (‘No revenue of the state

or any political subdivision or agency thereof shall ever be taken

from the public treasury directly or indirectly in aid of any

church, sect, or religious denomination or in aid of any sectarian

25

institution.”). Blaine amendments “have their roots in conflicts

between supporters of public schools and supporters of religious,

often Catholic, schools in the late nineteenth century.” Anderson,

895 A.2d at 956 n.13. Flonda’s Blaine amendment, including its

enactment in 1885 and enforcement in the 1910s, is inextricably

tied to racial and religious bigotry. See supra, at 3-4. A majority

of this Court has expressed deep reservations about the

constitutionality of a state Blaine amendment. In Mitchell, 530

U.S. at 829, the plurality concluded that “the exclusion of

pervasively sectarian schools from otherwise permissible aid

programs” is premised upon a “doctrine, born of bigotry, [that]

should be buried now.” Joining this plurality, the dissent in

Zelman recognized that Blaine amendments were intended to

disadvantage Catholics and other religious groups. 536 U.S. 720-

21 (2002) (Breyer, J., dissenting). See also Lemon v. Kurtzman,

403 U.S. 602, 645-46 (1971) (Brennan, J., concurring). In Locke,

this Court took pains to emphasize it was not reviewing such an

amendment. 540 U.S. at 723-24 n.7.

Notwithstanding this precedent and the prejudicial

pedigree of Florida’s Blaine amendment, the First District Court

of Appeal, when it struck down the private OSP option,

disagreed with this Court as to whether Blaine-era amendments

generally and Florida’s in particular are based on bigotry. See

Holmes, 886 So. 2d at 351 n.9 (“[H]ere, there is no evidence of

religious bigotry, relating to Florida’s no-aid provision.”’); but see

id. at 349 (stating that the intent of the Blaine amendment was to

preclude public funding for religious schools). The Florida court

failed even to wrestle with this Court’s presumption against the

constitutionality of a Blaine amendment; therefore, the reasoning

of Holmes and Anderson is similar. See Holmes, 886 So. 2d at

360 (Locke recognized that “‘a state. . . can preclude state

financial aid to religious institutions without violating either the

Establishment Clause or Free Exercise Clause.’’); see also id. at

363 (relying upon Eulitt v. Maine, 386 F. 3d 344 (ist Cir. 2004).

The result of the decisions is also identical: tuition

vouchers were withheld from parents who want to send their

children to teligious schools to receive a K-12 education. In

addition, both decisions were premised upon an erroneous

interpretation of the First Amendment. The Maine Supreme

Court upheld an exclusionary statute on this basis, whereas the

Florida court struck down an inclusionary one. The

consequences of these decisions are more far-rcaching than in

Locke, although the impact of Holmes is likuy to be even

broader than Anderson, as many more neutral educational

scholarship programs outlined above (see infra at 4-7), in

addition to non-educational programs, are implicated. See

Holmes, 886 So. 2d at 376-78, 388-89 (Polston, J., dissenting).

These consequences of Florida’s Blaine amendment, as

interpreted by Holmes, and § 2951(2) demonstrate hostility to

religion to the objective observer, contrary to the concerted

action of the Establishment Clause, the Free Exercise Clause and

the Equal Protection Clause “to prohibit state action that restricts,

limits, or divests one’s legal rights, duties or benefits based on

his or her religion.” Jd. at 390 (Polston, J., dissenting).

Therefore, this Court should review and overturn Anderson.

CONCLUSION

ME. REV. STAT ANN. tit. 20, § 2951(2) violates the First

and Fourteenth Amendments to the United States Constitution.

State courts have misinterpreted Locke and Lukumi to permit the

exclusion of religious persons solely on the basis of their

religious affiliation from K-12 public scholarship programs.

Consequently, this Court should grant the petition for certiorari

to clarify whether the practice violates the federal constitution.

Respectfully submitted,

RAQUEL A. RODRIGUEZ

General Counsel

NATHAN A. ADAMS, IV

Deputy General Counsel

Counsel of Record

State of Florida

Executive Office of the Governor

The Capito]

400 South Monroe Street

Tallahassee, Florida 32399

(850) 488-3494

DANIEL WOODRING

General Counsel

TIMOTHY D. OSTERHAUS

Assistant General Counsel

Florida Department of Education

325 West Gaines Street

Tallahassee, Florida 32399

(850) 245-0442