DAVID CARSON, as parent and next friend of O.C.; AMY CARSON, as parent and next friend of O.C.; ALAN GILLIS, as parent and next friend of I.G.; JUDITH GILLIS, as parent and next friend of I.G.; TROY NELSON, as parent and next friend of A.N. and R.N.; ANGELA NELSON, as parent and next friend of A.N. and R.N., Plaintiffs, Appellants, v. A. PENDER MAKIN, in her official capacity as Commissioner of the Maine Department of Education, Defendant, Appellee.
No. 19-1746
United States Court of Appeals For the First Circuit
October 29, 2020
Barron, Circuit Judge.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. D. Brock Hornby, U.S. District Judge]
Before Barron, Circuit Judge, Souter,* Associate Justice, and Selya, Circuit Judge.
Timothy D. Keller, with whom Arif Panju, Institute for Justice, Lea Patterson, First Liberty Institute, Jeffrey T. Edwards, PretiFlaherty, Michael K. Whitehead, Jonathan R. Whitehead, and Whitehead Law Firm, LLC, were on brief, for appellants.
Vivek Suri, Assistant to the Solicitor General, with whom Eric S. Dreiband, Assistant Attorney General, Halsey B. Frank, United States Attorney, Elliott M. Davis, Acting Principal Deputy Assistant Attorney General, Thomas E. Chandler, Attorney, Civil Rights Division, U.S. Department of Justice, and Eric W. Treene, Attorney, Civil Rights Division, U.S. Department of Justice, were on brief, for United States, amicus curiae.
Jay Alan Sekulow on brief for the American Center for Law and Justice, amicus curiae.
Russell Menyhart, Taft Stettinius & Hollister LLP, Leslie Hiner, EdChoice, Joshua D. Dunlap, and Pierce Atwood LLP on brief for EdChoice and Maine Heritage Policy Center, amici curiae.
Stephen C. Whiting, The Whiting Law Firm, and Mordechai Biser on brief for Agudath Israel of America, amicus curiae.
Sarah A. Forster, Assistant Attorney General, with whom Aaron M. Frey, Attorney General, Susan P. Herman, Deputy Attorney General, and Christopher C. Taub, Assistant Attorney General, were on brief, for appellee.
Zachary L. Heiden, Emma E. Bond, Daniel Mach, Heather L. Weaver, Richard B. Katskee, Alex J. Luchenitser, Sarah R. Goetz, M. Freeman, and David L. Barkey on brief for American Civil Liberties Union, American Civil Liberties Union of Maine Foundation, Americans United for Separation of Church and State, ADL (Anti-Defamation League), Central Conference of American Rabbis, Hindu American Foundation, Interfaith Alliance Foundation, Men of Reform Judaism, National Council of Jewish Women, People for the American Way Foundation, the Reconstructionist Rabbinical Association, Union for Reform Judaism, Women of Reform Judaism, American Atheists, Inc., Susan Marcus, James Torbert, and Theta Torbert, amici curiae.
Bruce W. Smith, Malina E. Dumas, and Drummond Woodsum on brief for Maine School Boards Association and Maine School Superintendents Association, amici curiae.
Francisco M. Negrón, Jr., John Foskett, and Valerio, Dominello & Hillman LLC on brief for National School Boards Association, Maine School Boards Association, Massachusetts Association of School Committees, New Hampshire School Boards Association, and Rhode Island Association of School Committees, amici curiae.
Samuel Boyd, Christine Bischoff, Lindsey Rubinstein, Southern Poverty Law Center, David G. Sciarra, Jessica Levin, Wendy Lecker, and
Alice O‘Brien, Eric Harrington, Kristen Hollar, Judith Rivlin, Jennifer Mathis, Jennifer Reisch, Paul D. Castillo, Andrew T. Mason, and Sunu Chandy on brief for National Education Association; American Federation of State, County and Municipal Employees, AFL-CIO; Bazelon Center for Mental Health Law; Center for Law and Education; Council of Administrators of Special Education; Equal Rights Advocates; GLSEN; Lambda Legal Defense and Education Fund, Inc.; Maine Education Association; National Women‘s Law Center; and Southern Education Foundation, amici curiae.
Samuel T. Grover, Patrick Elliott, Andrew Seidel, and Brendan Johnson on brief for Freedom from Religion Foundation, Inc., amicus curiae.
October 29, 2020
BARRON, Circuit Judge. The
Maine faces a practical problem, however, in making good on this commitment: more than half of its 260 school administrative units (“SAUs“) do not operate a public secondary school of their own. So, to ensure that those SAUs make the benefits of a free public education available no less than others do, Maine provides by statute that they may either (1) contract with a secondary school — whether a public school in a nearby SAU or an “approved” private school — for school privileges,
In this appeal, we consider a suit concerning this tuition assistance program that three sets of parents (and their children, for whom they sue as next friends) brought in 2018 against the Commissioner (“Commissioner“) of the Maine Department of Education (“Department“). The suit, which the plaintiffs filed in the District of Maine, takes aim at the program‘s requirement that a private school must be “a nonsectarian school in accordance with the First Amendment of the United States Constitution” to qualify as “approved” to receive tuition assistance payments, see
We have twice before rejected similar federal constitutional challenges to the “nonsectarian” requirement, see Eulitt ex rel. Eulitt v. Me. Dep‘t of Educ., 386 F.3d 344 (1st Cir. 2004); Strout v. Albanese, 178 F.3d 57 (1st Cir. 1999), but, in the interim, the Supreme Court of the United States has decided two cases that the plaintiffs contend require us now to reverse course. Even accounting for that fresh precedent, however, we see no reason to do so. We thus affirm the District Court‘s grant of judgment to the Commissioner.
I.
A.
The plaintiffs are David and Amy Carson and their daughter O.C., for whom they sue as next friends; Alan and Judith Gillis and their daughter I.G., for whom they sue as next friends; and Troy and Angela Nelson and their children A.N. and R.N., for whom they sue as next friends. The plaintiffs live in SAUs that operate no public secondary school of their own and that have opted to provide tuition assistance to parents who wish to send their children to an “approved” private school.
On August 21, 2018, the plaintiffs filed a complaint in the District of Maine, alleging that
B.
The tuition assistance program works as follows. Parents first select the school they wish their child to attend. See
To be “approved” to receive such payments, a private school must meet the requirements for basic school approval — and thus the state‘s compulsory school attendance requirements.
C.
The complaint sets forth detailed allegations about the “nonsectarian” requirement‘s impact on the plaintiffs. Those allegations, which we summarize here, pertain to both the identity of the sectarian schools that the parents want to send their children to and the way the “nonsectarian” requirement prevents them from receiving tuition assistance to do so.
The Nelsons send their daughter to Erskine Academy, which is a private academy that is “approved” to receive tuition payments from SAUs. They would prefer, however, to send her to Temple Academy (“TA“), which is a private school that their son attends and that “offers a high-quality educational program that aligns with their sincerely held religious beliefs.” Because the Nelsons “cannot afford to send more than one child to private school at their own expense,” they would need the tuition assistance to send their daughter, like their son, to TA. Although TA is not currently “approved” for attendance purposes, it is fully accredited by the New England Association of Schools and Colleges and could otherwise satisfy the requirements for “basic school approval.”
The plaintiffs have not requested that their respective SAUs pay tuition to their respective sectarian schools. But, that is so, they allege, only because, given the “nonsectarian” requirement, “such a request would be futile.”
D.
The Commissioner answered the complaint by asserting that the plaintiffs lacked standing under Article III of the United States Constitution to bring their claims and that, in any event, they failed to state a claim upon which relief may be granted. See
Discovery was completed in early 2019. On February 7, 2019, the parties substituted A. Pender Makin for Hasson, as by that time she had replaced Hasson as the Commissioner. Soon thereafter, the parties agreed to a stipulated record and joint stipulated facts. Among other things, that stipulated record detailed the mission and educational philosophy at BCS and TA.
The stipulated record established that BCS has a mission of “instilling a Biblical worldview” in its students, with religious instruction “completely intertwined” in its curriculum and the Bible as its “final authority in all matters.” Due to BCS‘s “high Biblical standards,” moreover, it will not hire teachers who are homosexual or who “identify as a gender other than on their original birth certificate.” TA similarly provides a “biblically-integrated education” and has an educational philosophy “based on a thoroughly Christian and Biblical worldview.” In addition, its religious commitments are such that it will not hire teachers who are homosexual.
Also of relevance here, the stipulated record established that BCS and TA will not accept tuition assistance payments from an SAU if doing so would subject them to the provisions of the Maine Human Rights Act (“MHRA“) that bar discrimination in employment based on sexual orientation and gender identity,
On April 5, 2019, the parties filed cross-motions for summary judgment, and soon thereafter amici curiae filed supporting legal memoranda in the District Court. In addition, the United States filed a statement of interest in support of the plaintiffs’ motion for summary judgment.
The parties eventually agreed, however, to submit the case to the District Court as cross-motions for judgment on the stipulated record. 401 F. Supp. 3d 207, 208 (D. Me. 2019). The District Court granted judgment to the Commissioner while denying judgment to the plaintiffs. Id. at 212.
The District Court noted that our Circuit and the Maine Law Court “have upheld the Maine approach to school choice when the [SAU] does not provide public secondary education” against similar federal constitutional challenges. Id. at 209 (citing Eulitt, 386 F.3d 344; Strout, 178 F.3d 57; Bagley v. Raymond Sch. Dep‘t, 728 A.2d 127 (Me. 1999); and Anderson v. Town of Durham, 895 A.2d 944 (Me. 2006)). The District Court explained that “[w]hat provoke[d] renewal of the dispute now, in the face of those many past decisions, is a 2017 United States Supreme Court decision, Trinity Lutheran Church of Columbia, Inc. v. Comer,” which the plaintiffs argued “radically changed the constitutional landscape of First Amendment free exercise challenges.” Id.
In Trinity Lutheran, the Court considered a federal constitutional challenge to a state restriction on a state-provided subsidy for resurfacing playgrounds at preschool and daycare facilities. 137 S. Ct. 2012, 2017 (2017). The Court determined that, under the Free Exercise Clause, the application of that restriction to deny the subsidy to a church-owned preschool was subject to the strictest scrutiny, because it was based “solely” on the putative recipient‘s religious “character.” Id. at 2021. The Court then concluded that the application of the restriction in that manner could not survive such exacting review. Id. at 2024.
Before addressing the import of Trinity Lutheran to the case at hand, though, the District Court first addressed the Commissioner‘s contention that the plaintiffs lacked Article III standing. The District Court explained that it was “arguable” that BCS and TA, by accepting tuition assistance payments from an SAU, would be subject to the MHRA‘s prohibition against discrimination in employment based on sexual orientation when they otherwise would not be and that, in consequence, BCS‘s and TA‘s “willingness to ‘consider’ applying for approval for public funding may not go far.” 401 F. Supp. 3d at 210. But, despite this uncertainty, the District Court held that the plaintiffs had Article III standing under our prior decision in Eulitt, which held that the plaintiffs there had standing to bring similar challenges to the “nonsectarian” requirement even though “there was no guarantee” that the sectarian private school that they had selected for their children to attend would agree to participate in the tuition assistance program if the “nonsectarian” requirement were invalidated. Id.
The District Court then turned to the question whether Trinity Lutheran controlled and noted that “[u]ntil a court of appeals revokes a binding precedent, a district court within the circuit is hard put to ignore that precedent unless it has unmistakably been cast into disrepute by supervening authority.” Id. at 211 (quoting Eulitt, 386 F.3d at 349). But, while the plaintiffs contended that Trinity Lutheran abrogated our prior decision in Eulitt, id. at 209, which upheld this “nonsectarian” requirement against similar federal constitutional
The District Court pointed out that four of the six Justices who joined the majority opinion in Trinity Lutheran stated in a footnote that “[t]his case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” 401 F. Supp. 3d at 211 (quoting Trinity Lutheran, 137 S. Ct. at 2024 n.3). It also observed that a seventh Justice, who concurred in the judgment, explicitly left “the application of the Free Exercise Clause to other kinds of public benefits for another day.” Id. (quoting Trinity Lutheran, 137 S. Ct. at 2027 (Breyer, J., concurring in the judgment)).
Thus, the District Court concluded that Eulitt “has certainly not been revoked” and that, because “Maine‘s educational approach has not changed materially since” Eulitt, that precedent controlled and required that the plaintiffs’ challenges be rejected. Id. at 208 n.8, 211-12. The District Court added, however, that even though it could not, “as a trial [court], say that Eulitt . . . has unmistakably been cast into disrepute[,] [i]t is certainly open to the First Circuit to conclude that, after Trinity Lutheran, it should alter its Eulitt holding that sustained Maine‘s educational funding law.” Id. at 211.
F.
The plaintiffs timely appealed on July 23, 2019. We heard arguments on January 8, 2020. Two further developments of note followed.
Two weeks after oral argument in our Circuit, the Supreme Court of the United States heard arguments in Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020). There, the Court considered a free exercise challenge to a Montana Supreme Court decision that struck down a state program giving tax credits to those who donated to organizations providing scholarships to private schools. Id. at 2251-53. The Montana Supreme Court explained that it was invalidating the program because it conflicted with a provision of that state‘s constitution that, among other things, prohibited state aid to private schools controlled by a “church, sect, or denomination.” See id. at 2251.
Then, on June 30, 2020, the United States Supreme Court ruled that, under the Free Exercise Clause of the United States Constitution, the Montana Supreme Court‘s decision applying the state constitution‘s no-aid provision in that manner was both subject to strict scrutiny and could not survive such review. Id. at 2260-64. Both parties to this appeal soon thereafter filed
II.
We start with the Commissioner‘s challenge to the plaintiffs’ standing under
The Commissioner accepts that, in principle, parents can establish standing to challenge the “nonsectarian” requirement, even though SAUs make the tuition assistance payments directly to the schools that the parents choose for their children to attend. Nor, given Eulitt, do we see how she could contend otherwise.
We explained in Eulitt that the parent-plaintiffs in that case satisfied the injury-in-fact component of Article III standing because they plausibly alleged that the “nonsectarian” requirement denied them the “opportunity” to find religious secondary education for their children that would qualify for public funding. 386 F.3d at 353. According to Eulitt, the loss of that “opportunity” in and of itself constituted an injury in fact personal to the parents, as “[e]ven though it is the educational institution, not the parent, that would receive the tuition payments for a student . . . it is the parent who must submit such an application and who ultimately will benefit from the approval.” Id.
With respect to the fairly-traceable component of Article III standing, moreover, we explained in Eulitt that because
The Commissioner nevertheless contends that the parents here cannot meet the redressability component of standing and that Eulitt is not to the contrary because it did not address redressability at all. The Commissioner points chiefly to the fact that BCS and TA represent that they will not apply to be “approved” to receive tuition assistance payments if, by receiving such public funding, they would subject themselves to the MHRA‘s prohibition against discrimination in employment based on sexual orientation and thereby be forced to change their hiring policies. The Commissioner argues that, in consequence of this uncertainty about BCS‘s and TA‘s willingness to participate in the tuition assistance program, the plaintiffs cannot show that it is “likely” that their requested relief — the invalidation of the “nonsectarian” requirement — would redress their injury. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (“[I]t must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.‘” (quoting Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 38, 43 (1976))).
In determining redressability, we must pay careful attention to both the nature of the plaintiffs’ injury in fact and the role that the challenged governmental action plays in causing it. When we do so here, it is evident that there is no redressability problem.
As Eulitt makes clear, the plaintiffs’ injury in fact inheres in their having lost the “opportunity” to find religious secondary education for their children that
True, BCS‘s and TA‘s concern about participating in the tuition assistance program centers on an expressly identified regulatory requirement — namely, the one set forth in the MHRA — rather than (as in Eulitt) unidentified ones. But, we do not see why that matters, given that it is not certain that the MHRA ultimately would lead either BCS or TA to decline tuition assistance payments if they were eligible to receive them, not the least because of potentially fact-dependent free exercise concerns that might then arise, cf. Bostock v. Clayton County, 140 S. Ct. 1731, 1754 (2020) (noting that although “none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way,” “other employers in other cases may raise free exercise arguments that merit careful consideration“).
Thus, the invalidation of
In arguing otherwise, the Commissioner points to cases that she contends have rejected plaintiffs’ attempts to satisfy the redressability component of Article III standing on the ground that the effectiveness of their requested relief depended on the discretionary actions of third parties. See, e.g., Simon, 426 U.S. at 42-43; Allen, 468 U.S. at 757-59; Warth v. Seldin, 422 U.S. 490, 505-07 (1975); Linda R.S. v. Richard D., 410 U.S. 614, 618-19 (1973). But, those cases did not involve — as this one does — an injury in fact that inhered in a lost opportunity to seek a government benefit. See Simon, 426 U.S. at 42-43; Allen, 468 U.S. at 757; Warth, 422 U.S. at 495-96; Linda R.S., 410 U.S. at 617-18. Nor did they involve — as this one does — an injury in fact traceable to the challenged governmental action. See Simon, 426 U.S. at 42-43; Allen, 468 U.S. at 757-59; Warth, 422 U.S. at 506; Linda R.S., 410 U.S. at 617-18.
By contrast, Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville (Northeastern Contractor), 508 U.S. 656 (1993),
opportunity to apply for the contracts on an equal footing with others. Id. at 666 & n.5; see also id. at 665-66 (detailing a number of “cases [that] stand for the following proposition: When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing“).
The Commissioner contends that Northeastern Contractor is distinguishable because it involved a challenge to a restriction that operated directly on the plaintiff (as the representative of private contractors). But, the injury in fact suffered by the plaintiffs here is, per Eulitt, no less fairly traceable to the restriction that they challenge, see 386 F.3d at 353, than the injury in fact in Northeastern Contractor was found to be to the restriction at issue there. Accordingly, we do not see why these plaintiffs are any less able to satisfy the redressability component of standing than the private-contractor organization in that case. For, while future developments might moot the plaintiffs’ claims by making clear that neither BCS nor TA will participate in the tuition assistance program, the opportunity that underlies the plaintiffs’ bid for standing -- as the loss of it constitutes the injury in fact -- exists at present but for the “nonsectarian” requirement. We therefore proceed to the merits, starting with the plaintiffs’ challenge under the
III.
The plaintiffs contend that the “nonsectarian” requirement discriminates against them based on their religion and thereby violates the
A.
The plaintiffs accept the District Court‘s conclusion that Maine‘s tuition assistance program is “materially” the same as it was at the time of Eulitt. See 401 F. Supp. 3d at 208 n.8. They also accept that their free exercise challenge mirrors the one rejected there. The plaintiffs nonetheless contend that Eulitt does not control the outcome here under the law-of-the-circuit doctrine, see United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991), because of Trinity Lutheran and Espinoza. We agree.
1.
One exception to the law-of-the-circuit doctrine “comes into play when a preexisting panel opinion is undermined by subsequently announced controlling authority,
The plaintiffs address both exceptions but focus on the second. Notably, Eulitt relied on that same exception in declining to reject the free exercise challenge there based solely on our prior ruling in Strout, in which we upheld the “nonsectarian” requirement against similar federal constitutional challenges. Eulitt, 386 F.3d at 350; Strout, 178 F.3d at 64-65.
Eulitt observed that Strout held that the “nonsectarian” requirement comported with the
Eulitt explained, however, that Strout was no longer controlling because of two subsequently decided Supreme Court cases: Locke v. Davey, 540 U.S. 712 (2004), and Zelman v. Simmons-Harris, 536 U.S. 639 (2002). In Locke, the Supreme Court rejected a free exercise challenge to a law that barred state scholarship aid from being used for a devotional theology degree. 540 U.S. at 718. Zelman, by contrast, rejected an
Eulitt did not decide that either of these intervening Supreme Court cases overruled Strout. It held that Locke supported Strout and that Zelman was distinguishable on the facts with respect to the
Trinity Lutheran and Espinoza, especially when considered together, similarly “provide [a] more focused direction than was available to the [Eulitt] panel,” id. That is so, as we next explain, in two respects.
2.
In Eulitt, we did not focus on whether the determination that a school qualifies as “nonsectarian” under
Trinity Lutheran explained that the playground resurfacing program “expressly discriminate[d] against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character” and held that, in consequence, it was subject to “the most exacting scrutiny.” 137 S. Ct. at 2021. Trinity Lutheran indicated, moreover, that discrimination based solely on “religious character” did not depend on the religious “use” that the recipient would make of the subsidy, and so left unaddressed the level of scrutiny that would apply to a restriction of that kind. Id. at 2023 (explaining that the plaintiff in Locke “was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do -- use the funds to prepare for the ministry, while “[h]ere there is no question that Trinity Lutheran was denied a grant simply because of what it is -- a church“).
To be sure, as the District Court noted, 401 F. Supp. 3d at 211, Trinity Lutheran contained potentially important caveats regarding its application beyond the idiosyncratic context there at issue. But, Espinoza followed soon thereafter and explained that Trinity Lutheran “distilled” the Court‘s free exercise precedent “into the ‘unremarkable’ conclusion that disqualifying otherwise eligible recipients from a public benefit ‘solely because of their religious character’ imposes ‘a penalty on the free exercise of religion that triggers the most exacting scrutiny.‘” Espinoza, 140 S. Ct. at 2255 (quoting Trinity Lutheran, 137 S. Ct. at 2021).
Moreover, Espinoza clarified both that discrimination based solely on “religious character” is discrimination based solely on religious “status” and that such discrimination is distinct from discrimination based on religious “use.” Id. To that point, Espinoza expressly rejected the contention that the Montana Supreme Court had held that the no-aid provision of the Montana Constitution excludes religious schools from receiving aid “not because of the religious character of the recipients, but because of how the funds would be used -- for ‘religious education.‘” Id. at 2255. Rather, the Court explained that, as in Trinity Lutheran, the case before it “turn[ed] expressly on religious status and not religious use.” Id. at 2256.
In addition to clarifying that use-based religious discrimination differs (even if not in a necessarily outcome-determinative way) from solely status-based religious discrimination, Espinoza also explained why the latter type of discrimination triggered strict scrutiny. Id. at 2257. To deny aid to a religious school “simply because of what it is,” the Court observed, “put[s] the school to a choice between being religious or receiving government benefits.” Id. (quoting Trinity Lutheran, 137 S. Ct. at 2023). Such a “choice between being religious or receiving government benefits” is not free from coercion, because a requirement that a school “divorce itself from any religious control or affiliation” to receive aid for which it is otherwise eligible necessarily “punishe[s] the free exercise of religion.” Id. at 2256 (alteration in original) (emphasis added) (quoting Trinity Lutheran, 137 S. Ct. at 2022).1
3.
The other respect in which Trinity Lutheran and Espinoza require us to conclude that we may not simply decide this case based on Eulitt has to do with its reliance on Locke in declining to apply strict scrutiny to the “nonsectarian” requirement. The problem here is that Trinity Lutheran and Espinoza each offer significant commentary on Locke and its scope that Eulitt did not have the benefit of considering. See Espinoza, 140 S. Ct. at 2257-59; Trinity Lutheran, 137 S. Ct. at 2023-24.
Eulitt read Locke to “confirm[] that the
Espinoza, however, distinguished Locke based on what it described as the narrow use-based nature of the restriction there and the “‘historic and substantial’ state interest” underlying it. Id. at 2257-58 (quoting Locke, 540 U.S. at 725). Espinoza noted in this regard that the restriction involved in Locke permitted the scholarship aid to be used at “pervasively religious schools” and that the restriction on that aid was in line with a historic tradition against using public funds to train clergy. Id. (quoting Locke, 540 U.S. at 724). Thus, Espinoza provides, at the very least, a “more focused direction than was available to the [Eulitt] panel,” Eulitt, 386 F.3d at 350, as to Locke‘s bearing on our assessment of the level of scrutiny that applies to the “nonsectarian” requirement that
4.
The Commissioner makes one additional argument for why, despite Trinity Lutheran and Espinoza, the second exception to the law-of-the-circuit doctrine does not apply here. She argues that Maine‘s school aid program differs substantially from the
But, the question under the second exception to the law-of-the-circuit doctrine is whether intervening precedent requires a fresh look at what we decided before, not whether it dictates a different result. Indeed, even though the aid programs in Locke and Zelman differed from Maine‘s tuition assistance program, see Eulitt, 386 F.3d at 349 & n.1, 355, Eulitt still held that those then-recent Supreme Court precedents required us to look at our earlier precedent in Strout anew, id. at 350. Accordingly, whatever the bounds of this exception to the law-of-the-circuit doctrine may be as a general matter, we are confident that it applies here and thus that Eulitt‘s free exercise ruling is no longer controlling.
B.
With Trinity Lutheran and Espinoza now on the scene, we take up the plaintiffs’ free exercise challenge afresh. In doing so, we may assume up front, as the plaintiffs assert, that the
we note, in which the Supreme Court‘s most recent precedents in this area are of less relevance.
1.
In claiming religious discrimination based on Trinity Lutheran and Espinoza, the plaintiffs do not dispute that all Mainers who reside in SAUs with no public secondary school of their own are equally free to use the tuition assistance to obtain a secular education at a private school. See Eulitt, 386 F.3d at 354 n.5. They contend, however, that the “nonsectarian” requirement impermissibly singles them out for unequal treatment based on religion nonetheless, because it precludes them from “either (1) . . . receiving the Tuition Benefit because they have exercised their freedom of religion by enrolling their students in religious schools, or (2) . . . exercising their freedom of religion to enroll their student in a religious school because they cannot afford tuition without receiving the Tuition Benefit.”
In fleshing out this argument, the plaintiffs assert that their “desire for religious
We proceed first by answering a pair of questions that are embedded in this claim of religious discrimination: (a) What constitutes discrimination based “solely on religious status“?3 and (b) Does the “nonsectarian” requirement discriminate in that way?4 As we will explain, the “nonsectarian” requirement does not discriminate based solely on religious status. But, having come that far, we still then must address one more question: (c) Does the “nonsectarian” requirement punish the plaintiffs’ religious
exercise nonetheless? For the reasons set forth below, it does not.
a.
Espinoza offers the clearest guidance as to what constitutes, with respect to doling out aid, solely status-based religious discrimination as opposed to discrimination based on religious use. Such status-based discrimination is manifest, Espinoza instructs, when a restriction is based solely on the aid recipient‘s affiliation with or control by a religious institution.
Espinoza explained that the Montana Constitution‘s no-aid provision was based solely on religious status -- and thus not on religious use -- because the Montana Supreme Court “repeatedly explained that the no-aid provision bars aid to ‘schools controlled in whole or in part by churches,’ ‘sectarian schools,’ and ‘religiously-affiliated schools.‘” Id. (quoting Espinoza v. Mont. Dep‘t of Revenue, 435 P.3d 603, 611-13 (Mont. 2018)). Espinoza emphasized, too, that the Montana Supreme Court “noted that most of the private schools that would benefit from the program were ‘religiously affiliated’ and ‘controlled by churches‘” and that the Montana Supreme Court “ultimately concluded that the scholarship program ran afoul of the Montana Constitution by aiding ‘schools controlled by churches.‘” Id. (quoting Espinoza, 435 P.3d at 613-14). Finally, it was on this basis that Espinoza held that “[t]he Montana Constitution discriminates
Espinoza made clear, moreover, that discrimination in handing out school aid based on the recipient‘s affiliation with or control by a religious institution differed from discrimination in handing out that aid based on the religious use to which the recipient would put it. Espinoza acknowledged that passages in the Montana Supreme Court‘s decision indicated that the state constitution‘s no-aid provision “has the goal or effect of ensuring that government aid does not end up being used for ‘sectarian education’ or ‘religious education.‘” Id. (emphasis added) (quoting Espinoza, 435 P.3d at 613-14). It also considered the contention that the no-aid provision was being applied by the Montana Supreme Court based on the religious use that those schools would make of that aid -- rather than solely based on their religious status -- because “[g]eneral school aid . . . could be used for religious ends by some recipients, particularly schools that believe faith should ‘permeate’ everything they do.” Id. But, Espinoza held that those use-based “considerations were not the Montana Supreme Court‘s basis for applying the no-aid provision to exclude religious schools; that hinged solely on religious status.” Id. As the Court explained, “[s]tatus-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses.” Id.
b.
Drawing on Espinoza‘s analysis of the nature of solely status-based discrimination and how it differs from discrimination based on religious use, we come, then, to the next question that we must confront: Does the “nonsectarian” requirement in
Notably, in response to the plaintiffs’ interrogatories, Commissioner Hasson stated that the Department determines if a school satisfies
In making its determination whether a particular school is in compliance with Section 2951, the Department considers a sectarian school to be one that is associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith. While affiliation or association with a church or religious institution is one potential indicator of a sectarian school, it is not dispositive. The Department‘s focus is on what the school teaches through its curriculum and related activities, and how the material is presented.
(emphasis added). Notably, too, the current Commissioner and the Maine Attorney General represent to us that they share the former Commissioner‘s view that the determination whether a school is “nonsectarian” depends on the sectarian nature of the educational instruction that the school will use the tuition assistance payments to provide. See Appellee‘s Br. at 39 (“Nor are the sectarian schools being denied participation in the tuition program because they are operated by churches. . . . Sectarian schools are denied funds not because of who they are but because of what they would do with the money -- use it to further the religious purposes of inculcation and proselytization.“).
The inclusion of the trailing phrase “in accordance with the
Reinforcing our reasons to accept the proffered use-based construction of the “nonsectarian” requirement is the fact that the plaintiffs develop no contrary argument as to how this provision should be construed. They thus provide us with no reason to reject the representations by the Commissioner and the Maine Attorney General that the restriction is use based.
The United States, for its part, did contend for the first time at oral argument that we could consider the Maine Law Court‘s statement in Bagley in 1999 that
We do not dispute that, as the United States asserts, some benefits restrictions that are nominally based on religious use are solely based on religious status. See Office of Legal Counsel, Religious Restrictions on Capital Financing for Historically Black Colleges and Universities, 2019 WL 4565486, at *15 (Aug. 15, 2019) (“To consider all activities of a religious school to be ‘related to’ sectarian instruction, and prohibit funding for the school on that basis, would risk collapsing the distinction between religious status and religious use . . . .“). But, even if that may be so in some instances, the record supports the Commissioner‘s representation that this restriction is not of that kind, and neither the plaintiffs nor the United States develops an argument that it is status based in disguise.5
Accordingly, we proceed on the understanding that this restriction, unlike the one at issue in Espinoza, does not bar
schools from receiving funding simply based on their religious identity -- a status that in and of itself does not determine how a school would use the funds that it receives to provide educational instruction. See Espinoza, 140 S. Ct. at 2261 (explaining that “[a] State need not subsidize private education[,] [b]ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious” (emphasis added)). Instead, we understand this restriction to bar BCS and TA from receiving the funding based on the religious use that they would make of it in instructing children in the tuition assistance program.6
c.
That brings us to the plaintiffs’ contention that the “nonsectarian” requirement is subject to strict scrutiny even if it is use- rather than solely status-based.7 Here, the plaintiffs rely not on any controlling Supreme Court authority but on Justice Gorsuch‘s concurrence in Trinity Lutheran,
The plaintiffs are right that Justice Gorsuch‘s Trinity Lutheran concurrence questioned the import of the status/use distinction to the level-of-scrutiny determination. It explained that the
We note also that Justice Gorsuch reasserted this same line of reasoning in his concurrence in Espinoza. In emphasizing that “[o]ur cases have long recognized the importance of protecting religious actions, not just religious status,” that concurrence noted that “we have recognized the First Amendment‘s protection for religious conduct in public benefits cases.” Espinoza, 140 S. Ct. at 2276-77 (Gorsuch, J., concurring). When the government offers benefits, it argued, “those benefits necessarily affect the ‘baseline against which burdens on religion are measured.‘” Id. (quoting Locke, 540 U.S. at 726 (Scalia, J., dissenting)). Thus, the concurrence explained, in Sherbert v. Verner, 374 U.S. 398 (1963), and Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707 (1981), the government‘s denial of benefits solely “because of conduct mandated by religious belief” ran afoul of the
There is no doubt that Justice Gorsuch‘s concurrences support the uncontroversial proposition that a restriction on the availability of tuition assistance to Mainers who go to church would violate the
That is important because nothing in either one of Justice Gorsuch‘s concurrences suggests that the government penalizes a fundamental right simply because it declines to subsidize it. See Regan v. Taxation with Representation of Wash., 461 U.S. 540, 549 (1983) (“[A] legislature‘s decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny.“). Thus, even under the rationale set forth in Justice Gorsuch‘s concurrences, we still must determine the baseline that Maine has set by the benefit that
From this vantage, we find it significant that Maine provides tuition assistance only to those who cannot get the benefits of a free public school education directly from their SAU. That limitation on the program‘s scope -- which is itself not based on either a recipient‘s religious use or status -- reveals that the program is designed “to ensur[e],” as the Commissioner puts it, that students who cannot get a public school education from their own SAU can nonetheless get an education that is “roughly equivalent to the education they would receive in public schools.” See Hallissey v. Sch. Admin. Dist. No. 77, 755 A.2d 1068, 1073 (Me. 2000) (“Within the statutory scheme, section 5204(4)‘s function is limited to authorizing the provision of tuition subsidies to the parents of children who live within school administrative units that simply do not have the resources to operate a public school system, and whose children would otherwise not be given an opportunity to receive a free public education.“).
We find it significant, too, for purposes of defining the baseline, that the state defines the kind of educational instruction that public schools provide as secular instruction, based on its “interest in maintaining a religiously neutral public education system in which religious preference is not a factor.” See, e.g., 121 Me. Legis. Rec. S-640 (1st Reg. Sess. May 14, 2003) (statement of Sen. Martin) (“Because we retain a responsibility of a publicly funded education, we must look carefully at what we believe is an appropriate form of education for our children.“). For while that restriction on the content of public school instruction is religion based, it is also wholly legitimate, as there is no question that Maine may require its public schools to provide a secular educational curriculum rather than a sectarian one. See, e.g., Sch. Dist. of Abington v. Schempp, 374 U.S. 203, 226 (1963); Epperson v. Arkansas, 393 U.S. 97, 106-07 (1968).
Putting these two points together, we conclude that, given the baseline that Maine has set through the benefit provided by the tuition assistance program, the plaintiffs in seeking publicly funded “biblically-integrated” or religiously “intertwined” education are not seeking “equal access” to the benefit that Maine makes available to all others -- namely, the free benefits of a public education. The plaintiffs are right that, from all the record indicates, BCS is “approved” by the Department for attendance purposes, and TA meets the requirements to be “approved” as such. See
To be sure, by making the free benefits of public education available to children in
Our conclusion on this score accords with the free exercise rulings in Thomas and Sherbert that Justice Gorsuch‘s Espinoza concurrence invokes. See Espinoza, 140 S. Ct. at 2276 (Gorsuch, J., concurring). Those cases considered limitations on unemployment benefits that deemed a refusal to work compelled by one‘s religious faith “without good cause,” Sherbert, 374 U.S. at 401 (quoting S.C. Code Ann. § 68-114 (1952)); Thomas, 450 U.S. at 709 n.1 (quoting Ind. Code § 22-4-15-1), even though a non-faith-based reason for refusing to work was deemed to be for good cause. See Sherbert, 374 U.S. at 399-401 (considering a state‘s denial of unemployment benefits to a woman because she refused to labor on “the Sabbath Day of her faith“); Thomas, 450 U.S. at 709-12 (considering a state‘s denial of unemployment benefits when the plaintiff had resigned from his job “because his religious beliefs forbade participation in the production of armaments“). Such a differential assessment of what constituted good cause for not working was deemed to reflect, necessarily, a devaluation of religious motivations, Bowen v. Roy, 476 U.S. 693, 708 (1986) (plurality opinion); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 537-38 (1993), and thus “tend[ed] to exhibit hostility” toward religion, Roy, 476 U.S. at 708.
There is no such concern presented here. Because Maine permissibly requires public educational instruction to be nonsectarian for reasons that reflect no hostility to religion, it betrays no hostility toward religion when it imposes a use-based “nonsectarian” restriction on the public funds that it makes available for the purpose of
We recognize that, in so stating, Eulitt relied on Locke. Potentially, that is of concern. After all, although Trinity Lutheran and Espinoza addressed solely status-based aid restrictions, each distinguished Locke in consequence of the nature of the use-based restriction that it involved rather than simply in consequence of the fact that the restriction was use based. Trinity Lutheran, 137 S. Ct. at 2023; Espinoza, 140 S. Ct. at 2257. In particular, Espinoza noted that in Locke the state permitted the scholarship funds to be used at a “pervasively religious school[]” so long as the student was not pursuing a devotional theology degree there, 140 S. Ct. at 2257 (quoting Locke, 540 U.S. at 724),12 and that it did so in accord with the unique tradition against state support for clerical training, id. at 2257-59. By contrast, Espinoza explained, the no-aid provision in the Montana Constitution was not so tailored, id. at 2257, and no similar tradition supported a ban on state support for religious schools, id. at 2259.
But, even if Espinoza suggests that Locke is a narrower ruling than Eulitt understood it to be, we do not read Espinoza to hold that a use-based restriction on school aid necessarily violates the
Thus, even accounting for Espinoza‘s discussion of Locke, the “nonsectarian” requirement neither “punishes” a recipient solely for being controlled by or affiliated with a religious institution nor imposes a “penalty” for doing religious things. Rather, it limits a subsidy that the state may permissibly restrict to those schools -- whether or not religiously affiliated or controlled -- that provide, in the content of their educational instruction, a rough equivalent of the public school education that Maine may permissibly require to be secular but that is not otherwise accessible. See Eulitt, 386 F.3d at 354 (“The fact that the state cannot interfere with a parent‘s fundamental right to choose religious education for his or her child does not
Nor, we should add, is it evident how Maine could craft any more tailored restriction to serve the discrete and permissible end this tuition assistance program serves without intruding into private religious practice in ways that it reasonably may want to avoid for reasons at least consonant with the Religion Clauses. Cf. Eulitt, 386 F.3d at 355-56; Bagley, 728 A.2d at 147. Given limited public funds, the state‘s rural character, and the concomitant scarcity of available public school options for residents of many SAUs, we do not see why the
2.
Here, Espinoza and Trinity Lutheran figure much less prominently. In fact, the latter did not mention animus at all and the former referred to animus only in discussing whether there was a tradition against state support of religious schools that could create a “‘historic and substantial’ state interest” per Locke. See Espinoza, 140 S. Ct. at 2257-58 (quoting Locke, 540 U.S. at 725).
Espinoza explained in that regard that such a tradition should not “inform our understanding of the Free Exercise Clause,” given the “checkered” history that many no-aid provisions share with the Blaine Amendment of the 1870s. Id. at 2258-59. But, the Blaine Amendment is not at issue here, and, in fact, Maine‘s constitution never contained such a “no-aid” clause. See Bagley, 728 A.2d at 132 n.8.
Thus, nothing in Espinoza -- or Trinity Lutheran -- calls into question our treatment of animus in Eulitt, in which we held that it played no part in the enactment of
The plaintiffs do separately press their animus claim by analogizing certain statements that Maine legislators made while the state legislature considered (and rejected) an attempt to repeal the “nonsectarian” requirement in the wake of Zelman (and before Eulitt) to the statements of state civil rights commission members that the Supreme Court, post-Eulitt, considered in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018). But, the Supreme Court found the statements in Masterpiece Cakeshop concerning because they were made in the specific context of “an adjudicatory body deciding a particular case.” Id. at 1730. Thus, that precedent provides no reason for us to depart from Eulitt‘s holding as to animus.
C.
In sum, as in Eulitt, we have once again considered our prior precedent upholding the “nonsectarian” requirement against a free exercise challenge with the aid of fresh precedent from the Supreme Court. But, due to the nature of the restriction at issue and the nature of the school aid program of which it is a key part, we conclude, once again, that the “nonsectarian” requirement does not violate the
IV.
First up is the plaintiffs’ contention that the “nonsectarian” requirement violates the
The barrier here is Eulitt. As we explained there, Maine‘s tuition assistance program “deals with the provision of secular secondary educational instruction to its residents; it does not commit to providing any open forum to encourage diverse views from private speakers.” 386 F.3d at 356; see also id. (explaining that “[c]onsequently, cases dealing with speech fora -- such as Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) . . . -- are not relevant“). Given that the plaintiffs point to no post-Eulitt developments that call it into question, that prior precedent of ours controls here.
V.
We next consider the plaintiffs’ equal protection challenge, which is based on the alleged religious discrimination that the “nonsectarian” requirement effects. Again reviewing de novo, see Floyd, 740 F.3d at 38, we conclude that here as well Eulitt stands in the way.
Eulitt explained that where a “challenged program comports with the Free Exercise Clause, that conclusion wraps up the religious discrimination analysis,” such that “any further equal protection inquiry” need pass only rational basis review. 386 F.3d at 354 (citing Locke, 540 U.S. at 720 n.3; and Johnson v. Robison, 415 U.S. 361, 375 n.14 (1974)).13 Neither Espinoza nor Trinity Lutheran addressed the equal protection claims the plaintiffs there presented, Espinoza, 140 S. Ct. at 2263 n.5; Trinity Lutheran, 137 S. Ct. at 2024 n.5, and so Eulitt controls on that point.
In addition, even though the Eulitt plaintiffs conceded that their equal protection claim would fail if rationality review applied, Eulitt did suggest that the rational basis test was easily satisfied. 386 F.3d at 356. Thus, the plaintiffs need to explain why that conclusion is not decisive here.
Romer held that Colorado‘s proffered rationales for a sweeping state constitutional amendment that denied persons protection based on their being “homosexual” were “so far removed” from the breadth of the provisions that it was “impossible to credit” them. 517 U.S. at 624, 635. Here, however, the link between the state interest and the “nonsectarian” requirement is clear given the state‘s interest -- rooted in its state constitution -- in making the benefits of a free public education available.
Christian Science Reading Room also offers no help to the plaintiffs. There, the Ninth Circuit analyzed the San Francisco Airport Commission‘s decision to terminate the tenancy of a religious organization under rational basis review. 784 F.2d at 1012-13. It found that the policy could not be said to “further[] the governmental purpose in any way” where it had been adopted to remedy an Establishment Clause violation that did not actually exist. Id. at 1016.
But, even if we were to assume that any perceived Establishment Clause violation would be similarly illusory here, “a classification ‘must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.‘” Heller v. Doe, 509 U.S. 312, 320 (1993) (quoting FCC v. Beach Commc‘ns, 508 U.S. 307, 313 (1993)). Thus, in challenging the statute, the plaintiffs “must negate every plausible basis that conceivably might support it.” Boivin v. Black, 225 F.3d 36, 44 (1st Cir. 2000).
Eulitt, however, identified multiple rationales -- all consonant with Maine‘s interest in ensuring that the public‘s funds go to support only the rough equivalent of a public education -- for the “nonsectarian” requirement in the course of explaining why the plaintiffs’ concession that their equal protection claim would fail under rational basis review was “understandable“:
[T]he legislative history clearly indicates Maine‘s reasons for excluding religious schools from education plans that extend public funding to private schools for the provision of secular education to Maine students. These reasons include Maine‘s interests in concentrating limited state funds on its goal of providing secular education, avoiding entanglement, and allaying concerns about accountability that undoubtedly would accompany state oversight of parochial schools’ curricula and policies.
386 F.3d at 356. Yet, rather than address (much less negate) any of these purposes, the plaintiffs contend that the adoption of the “nonsectarian” requirement was based only on the state‘s “erroneous belief that the Establishment Clause required it to do so.” See Christian Science Reading Room, 784 F.2d at 1013; see also id. at 1013 n.2 (“[A] court should not consider a hypothesized purpose if it is clear that ‘the asserted purpose could not have been a goal of the [policy].‘” (alteration in original) (quoting Weinberger v. Wisenfeld, 420 U.S. 636, 648 n.16 (1975))).
But, we cannot conclude -- and the plaintiffs do not explain how we could -- that the other rationales for the “nonsectarian” requirement that Eulitt found present in
VI.
That leaves only the plaintiffs’ contention that the
The plaintiffs assert that
The chief problem for the plaintiffs is that none of the authority that they rely on indicates that the
The plaintiffs do cast post-Strout cases like Zelman as if they stand for the proposition that the
In any event, the record demonstrates that schools seeking to be “approved” generally self-identify as “sectarian” or “nonsectarian,” and the Commissioner explained that “if there is ever a question, the determination of whether a school is secular could readily be made by looking at objective factors such as mandatory attendance at religious services and course curricula.”
And, consistent with that conclusion, the plaintiffs point only to two instances in which the Department inquired into the ways private schools other than BCS or TA seeking to be “approved” for tuition purposes incorporated religious training. Given that the inquiry is undertaken for purposes of ensuring the educational instruction provided by an applicant will mirror the secular educational instruction provided at Maine‘s public schools, such evidence cannot suffice to supply evidence of the kind of entanglement that could rise to the level of an
The plaintiffs do separately contend that the “nonsectarian” requirement “establish[es] a ‘religion of secularism’ in the sense of affirmatively opposing or showing hostility toward religion.” Appellants’ Br. at 37 (quoting Schempp, 374 U.S. at 225). But, any family in Maine that prefers a sectarian education for their children to the secular one Maine provides as a public option can pay the tuition for their child to receive such an education. So, because that public educational option may be secular, this contention also goes nowhere. Thus, for this reason as well, the plaintiffs’ Establishment Clause challenge fails.
VII.
Maine‘s Constitution instructs the state‘s legislature to ensure that its local institutions have the means to provide the benefits of a free public education to their children. There is no question that Maine may ensure that such a public education is a secular one, just as there is no question that the
The difficulty Maine confronts is that many of its localities cannot feasibly provide the benefits of that free public education directly to their residents. Thus, Maine has had to adapt to that reality. In doing so, it has chosen to provide -- while still ensuring that any parent in Maine may send their child to a religious school at their own expense -- tuition assistance for those children who live in localities that operate no public secondary school of their own to attend a private school that will provide a substitute for what they cannot get from the government.
In conditioning the availability of that assistance on the requirement that recipients use it for educational instruction that is as nonsectarian in content as the free public education that is not directly available to them, Maine transgresses neither the
The judgment of the District Court is affirmed.