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Securing Religious Liberty Rights in Maine

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Pioneer Law’s role in winning the Carson v. Makin case at the Supreme Court

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On June 21, 2022, the U.S. Supreme Court ruled in Carson v. Makin that a Maine school tuition law that excluded religious schools was unconstitutional. Pioneer Public Interest Law Center, then known as PioneerLegal, had filed an amicus curiae brief urging the Court to strike down the Maine law.

In the Court’s 2020 ruling in Espinoza v. Montana Department of Revenue, Chief Justice John Roberts wrote that “A state need not subsidize private education.  But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

For over a century, until the early 1980s, religiously affiliated schools were included in the Maine school tuitioning program, under which communities that don’t have their own schools can either contract with a school or allow parents to use the per-pupil spending allotment to attend the public or private school of their choice. The Maine state legislature, driven by the Senate chair of the education committee, re-codified the program in 1982 to prohibit parents and students from using the law to access religious schools, as was originally intended in 1873.

Pioneer Institute Executive Director Jim Stergios noted that Maine law allowed parents to access the public or private education that best suits their children except if the school was religiously affiliated — a practice that, in light of the Espinoza decision, was clearly counter to the Constitution.

PioneerLegal Applauds Today’s U.S. Supreme Court Decision in Carson v. Makin

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BOSTON – PioneerLegal applauds today’s U.S. Supreme Court decision in Carson v. Makin striking down a Maine law that allows districts without their own public schools to contract with or reimburse the families of students who attend private or public schools located elsewhere, but which explicitly excludes religious schools.

Two years ago, in the 2020 decision, Espinoza v. Montana Department of Revenue, Chief Justice John Roberts wrote in his majority opinion that, “A state need not subsidize private education.  But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

“While the Maine law allowed parents to access the public or private education that best suits their children,” said PioneerLegal President Frank J. Bailey, “its exclusion of religious schools clearly could not pass constitutional muster after Espinoza.”

Again writing for the majority, Chief Justice Roberts found that the “unremarkable” principles in Espinoza suffice to resolve this case and that for the Court to “accept Maine’s argument, our decision in Espinoza would be rendered meaningless.”  Bailey also noted that “a law, such as the one at issue in Carson, that targets religious education will rarely satisfy strict scrutiny analysis.”

For over a century, until the early 1980s, religiously affiliated schools were included in the Maine school choice program.  The Maine Legislature re-codified the program in 1982 to prohibit parents and students from using the law to access religious schools, as was the intention when it was passed in 1873.

“We are thrilled that the law will once again reflect the intent of those who enacted it, as it did for over a century,” said Jamie Gass, Pioneer Institute’s director of school reform.  “This ruling will restore educational opportunity to families across rural Maine.”

PioneerLegal submitted an amicus brief in Carson, and Pioneer Institute submitted an amicus brief in Espinoza, which was cited in Justice Samuel Alito’s concurrence.

For well over a decade Pioneer Institute has highlighted this important legal and educational topic through research, events, op-eds, media appearances, podcast episodes, and a documentary film.

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Pioneer Institute Files Amicus Curiae Brief in U.S. Supreme Court School Choice Case

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Challenges Maine statute that excludes religious schools from school tuitioning law  

BOSTON –  Pioneer Institute has filed an amicus curiae brief in Carson v. Makin urging the Supreme Court of the United States to strike down a provision of Maine law. The Court will hear oral arguments in Carson this morning (December 8) at 10 am. The Maine law being challenged allows districts that don’t have their own schools to contract with a school or pay for students that choose to attend public or private schools, but explicitly excludes religious schools.

The Court’s 2020 ruling in Espinoza v. Montana Department of Revenue, a case in which Pioneer also filed an amicus brief that was cited by Justice Samuel Alito in his concurring opinion, Chief Justice John Roberts wrote in his majority decision that “A state need not subsidize private education.  But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

“Maine law allows parents to access the public or private education that best suits their children – except if the school is religiously affiliated,” said Pioneer Institute Executive Director Jim Stergios. “We believe Espinoza makes it clear that such a provision runs counter to the Constitution.”

For over a century, until the early 1980s, religiously affiliated schools were included in the Maine school tuitioning program, under which communities that don’t have their own schools can either contract with a school or allow parents to use the per-pupil spending allotment to attend the public or private school of their choice.

The Maine state legislature, driven by the Senate chair of the education committee, re-codified the program in 1982 to prohibit parents and students from using the law to access religious schools, as was originally intended in 1873.

The Pioneer brief was co-authored by Michael Gilleran of Fisher Broyles and Ryan McKenna. Gilleran also was the lead attorney in Pioneer’s amicus brief in the landmark Espinoza case.

“We believe the Maine law clearly doesn’t pass constitutional muster under Espinoza, Gilleran said.  “I hope this case will reiterate the Court’s position and open educational opportunity to more students across the country.”

The Court is expected to rule on the case before its current term ends at the end of June 2022.

For well over a decade, Pioneer Institute has used its legal work, research, events, polling, and op-eds to highlight nativist, anti-Catholic educational and legal barriers to school choice in Massachusetts and across the country.  In 2018, Pioneer produced a 30-minute documentary, “Big Sacrifices, Big Dreams: Ending America’s Bigoted Education Laws,” that chronicles the struggles of four families in Massachusetts, Michigan, and Georgia, all states with so-called Blaine amendments that prohibit public money from flowing to religiously affiliated schools, to send their children to parochial schools.

About the Author

Michael C. Gilleran is a litigation attorney in Boston, and a partner in the national law firm of FisherBroyles, LLP, who has been active for many years in the cause of educational choice. He is currently Vice-Chair of the Board of Trustees of Thomas More College in New Hampshire and Rome.  Formerly he was Chair of the Advisory Board of Catholic Charities of Greater Boston.   For many years he has received the SuperLawyer© designation from Boston Magazine as well as the AV rating (preeminent) from the national Martindale-Hubbell attorney rating service.  He is the author of a leading book on Massachusetts law, published by the largest national legal publisher, which is frequently cited by Massachusetts courts including the Massachusetts Supreme Judicial Court.  His many legal articles have appeared in such publications as the American Bar Association Journal.   He is frequently asked to give presentations on important issues of Massachusetts law with leading judges.

About Pioneer

Pioneer’s mission is to develop and communicate dynamic ideas that advance prosperity and a vibrant civic life in Massachusetts and beyond. Pioneer’s vision of success is a state and nation where our people can prosper and our society thrive because we enjoy world-class options in education, healthcare, transportation and economic opportunity, and where our government is limited, accountable and transparent. Pioneer values an America where our citizenry is well-educated and willing to test our beliefs based on facts and the free exchange of ideas, and committed to liberty, personal responsibility, and free enterprise.

Pioneer Institute Files Amicus Brief Urging Supreme Court to Hear School Choice Case

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Claims amendment to Montana Constitution motivated by anti-Catholic bias

Contact Micaela Dawson, 617-723-2277 ext. 203 or mdawson@pioneerinstitute.org

BOSTON – Pioneer Institute today announced that it has submitted an amicus curiae urging the United States Supreme Court to hear Espinoza v. Montana Department of Revenue, which challenges a state constitutional amendment marked by religious bias.

The amendment in question is a so-called Blaine amendment. It prohibits public resources from flowing to individuals to send their children to religiously affiliated schools, preventing Catholics and immigrants from receiving the kind of education that would enable them to become successful.

In the Espinoza case, Kendra Espinoza, a suddenly-single mom, sought a better education for her daughters. In public school, one daughter was bullied and the other struggled in her classes. Both children would later thrive in the parochial school of her choice.

Ms. Espinoza’s decision to send her daughters to Stillwater Christian School was not easy and caused her family financial difficulties. Her access to a badly needed scholarship was denied after the Montana Supreme Court struck down a legislatively established education tax credit program. The basis for the court’s decision was the state’s 130-year-old Blaine amendment.

While the money for the scholarships the Espinoza family accessed came from private sources, the Montana Innovative Education Program Credit provided the donors with tax credits for their contributions. According to the Montana Supreme Court, the Blaine amendment prevented Ms. Espinoza’s children from gaining access to the scholarships.

“Acts motivated by religious animus violate the first and 14th amendments to the U.S. Constitution,” said Cornelius Chapman, an attorney and the author of “The Know-Nothing Amendments: Barriers to School Choice in Massachusetts.” “Even if they appear neutral on their face, they are impermissible if designed to persecute or oppress a religion or its practices.”

Legislative history and press coverage of efforts to enact a national Blaine amendment in the 1870s show that Catholicism was clearly the target of amendment proponents.

Sadly, anti-Catholic bias still animated a majority of Congress in 1889, when the enabling act authorizing Montana to form a state constitution required that it include a Blaine provision. The clause forced on Montana by an anti-Catholic Congress exists to this day in substantially unaltered form.

“Kendra Espinoza, like so many other parents, sought the education that best suits the needs of her children,” said Pioneer’s Executive Director Jim Stergios. “It is hard to believe that an amendment steeped in anti-Catholic bias still stands in her way 130 years after its passage.”

Massachusetts was the first of 38 states to adopt Blaine amendments. Two amendments to the Massachusetts Constitution are the work of the virulently anti-Catholic Know-Nothing Party, which came to power in the state elections of 1854, after a wave of Catholic immigrants arrived in the Commonwealth during the Irish Potato Famine.

The Pioneer brief was filed April 12, 2019. It was drafted by a team led by Michael Gilleran of Fisher Broyles and Professor Dwight Duncan of the University of Massachusetts School of Law. They were assisted by Harvard Law School students Annika Boone, Benjamin Fleshman, Anastasia Frane, James McGlone and Grant Newman.

The Court is expected to announce whether it will hear the case by early summer.

In 2018, Pioneer produced a 30-minute documentary, “Big Sacrifices, Big Dreams: Ending America’s Bigoted Education Laws,” that chronicles the struggles of four families in Massachusetts, Michigan, and Georgia, all states with Blaine amendments, to send their children to parochial schools. View the film here.

Pioneer Institute is an independent, non-partisan, privately funded research organization that seeks to improve the quality of life in Massachusetts through civic discourse and intellectually rigorous, data-driven public policy solutions based on free market principles, individual liberty and responsibility, and the ideal of effective, limited and accountable government.

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PioneerLegal is a non-partisan, public interest law firm that defends and promotes educational options, accountable government and economic opportunity across the Northeast. PioneerLegal achieves its mission through legal research, amicus briefs, and litigation.

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