SUMMARY OF THE ARGUMENT:
“Maine’s tuition assistance program has created a conundrum under both Religion Clauses. Parents choose the schools their children will attend. Under this Court’s existing precedent, any school that satisfied the state’s compulsory education requirement should be eligible to receive payments. Instead of curriculum to eliminate academically qualified schools that take their faith seriously and integrate it into the entire curriculum, based on a fine-line distinction between religious status and religious use (Sect. I). The procedure raises blatant entanglement concerns (Sect. II) and revives the ‘pervasively religious’ factor this Court rejected decades ago (Sect. III).
Over the past several decades, this Court has shifted from a strict ‘no aid’ policy to a flexible position applying non discrimination principles in cases involving government aid to religious organizations (Sect. IV). Although Trinity Lutheran and Espinoza continued this trend, both left open the status-use distinction for another day. That day has come. This Court should continue down the path of non discrimination, reverse the First Circuit, and hold that Maine cannot discriminate against otherwise qualified schools that take religion seriously.“