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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006

## Text

(2. Vey cen Ary i) ic 8} 4
Se rere Court, Us

() ep BD

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 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1235%3A7. Public record. Not legal advice.