Trump administration files in support of Maine religious school students

The Department of Justice today filed a Statement of Interest in the U.S. District Court for the District of Maine supporting students who claim that the State discriminated against them in violation of the Free Exercise Clause of the U.S. Constitution when it barred them from a program paying the public or private school tuition of students who do not have public schools in their school districts, because the students wish to use the tuition to attend private religious schools that otherwise satisfy State education requirements.

The case, Carson v. Makin, was brought by students and their parents challenging their exclusion from the Maine tuition program. In Maine, 143 of the State’s 260 school districts do not operate their own high schools. Such school districts may arrange for another school to teach all of their students, or these school districts may provide tuition payments to allow families to go to the public school or private school of their choice. The State, however, forbids students in the tuition program to attend “sectarian” schools.

“Under the Constitution, governments may not exclude students from education programs solely because of their religious status or their religious choices,” said Assistant Attorney General Eric Dreiband. “The Department of Justice is committed to ensuring that all children and their families may participate in benefit programs without discrimination based on their faith.”

The United States’ Statement of Interest emphasizes that excluding otherwise eligible students from the program because they attend religious schools violates the First Amendment, as recently explained by the Supreme Court two years ago in Trinity Lutheran Church of Columbia v. Comer. In Trinity Lutheran, the Supreme Court held that “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion,” and may only be justified by the most compelling governmental interests, which, the brief argues, Maine cannot show here. Preferring secular private schools that meet the academic requirements set forth in Maine law to religious schools that meet those same requirements, the United States’ brief concludes, cannot be reconciled with the Supreme Court’s decision in Trinity Lutheran.

Today’s filing addresses issues set forth in the Department of Justice’s Guidance on Federal Law Protections for Religious Liberty issued on Oct. 6, 2017, at the direction of President Trump’s  May 4, 2017, Executive Order Promoting Free Speech and Religious Liberty. The Department of Justice Guidance states that “government may not target persons or individuals because of their religion” and observes that “constitutional protections for religious liberty are not conditioned upon the willingness of a religious person or organization to remain separate from civil society . . .  Individuals do not give up their religious-liberty protections by providing or receiving social services, education, or healthcare.”

In July 2018, the Department of Justice announced the formation of the Religious Liberty Task Force. The Task Force brings together Department components to coordinate their work on religious liberty litigation and policy, and to implement the Attorney General’s 2017 Religious Liberty Guidance.