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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 98-1986 <br> <br>                      ELWOOD STROUT, ET AL., <br> <br>                     Plaintiffs, Appellants, <br> <br>                                v. <br> <br>            J. DUKE ALBANESE, IN HIS OFFICIAL CAPACITY <br>                AS COMMISSIONER, MAINE DEPARTMENT <br>                   OF EDUCATION, ETC., ET AL., <br> <br>                      Defendants, Appellees. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                    FOR THE DISTRICT OF MAINE <br> <br>           [Hon. D. Brock Hornby, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                 Campbell, Senior Circuit Judge, <br> <br>                    and Stahl, Circuit Judge. <br> <br>                      _____________________ <br> <br>    Vincent P. McCarthy, with whom Ann-Louise Lohr, The American <br>Center for Law and Justice, Northeast, Brian W. Raum, American <br>Center for Law and Justice, New York, Stephen C. Whiting, The <br>Whiting Law Firm, P.A., Jay A. Sekulow and American Center for Law <br>and Justice, Inc. were on brief, for appellants. <br>    Peter J. Brann, State Solicitor, with whom Andrew Ketterer, <br>Attorney General, and Paul Stern, Deputy Attorney General, were on <br>brief, for appellee Commissioner, Maine Department of Education. <br>    A. Van C. Lanckton, Craig & MacCauley, PC and Marc D. Stern on <br>brief for American Jewish Congress, amicus curiae. <br>    Robert H. Chanin, John M. West, Alice O'Brien, Bredhoff & <br>Kaiser, P.L.L.C., Donald F. Fontaine, Fontaine & Beal, P.A., <br>Steven K. Green, Ayesha N. Khan, Elliot M. Mincberg, Judith E. <br>Schaeffer, Barbara G. Shaw, Marcus , Grygiel & Clegg, PA, <br>Jeffrey A. Thaler, Bernstein, Shur, Sawyer & Nelson, Elizabeth J. <br>Coleman, Steven M. Freeman, Lauren A. Levin and David Rosenberg on <br>brief for Maine Education Association, National Education <br>Association, Americans United for Separation of Church and State, <br>People for the American Way Foundation, Maine Civil Liberties <br>Union, and Anti-Defamation League of B'nai B'rith, amici curiae. <br>     <br>                       ____________________ <br> <br>                           May 27, 1999 <br>                       ____________________

         TORRUELLA, Chief Judge.  As we embark upon resolution of <br>the thorny questions presented by this appeal, it is appropriate <br>that we keep in mind that "[c]onstitutional adjudication does not <br>lend itself to the absolutes of the physical sciences or <br>mathematics."  Tilton v. Richardson, 403 U.S. 672, 678 (1971).  The <br>controversy before us patently reflects this truth. <br>         The issues raised require us to consider the sometime <br>competing values found in the Religion Clauses of the First <br>Amendment of the Constitution -- otherwise described as "the <br>internal tension in the First Amendment between the Establishment <br>Clause and the Free Exercise Clause."  Id. at 677.  "[B]oth are <br>cast in absolute terms, . . . either of which, if expanded to a <br>logical extreme, would tend to clash with the other."  Walz v. Tax <br>Commission, 397 U.S. 664, 668-69 (1970). <br>                            BACKGROUND <br>         Maine has enacted a statute providing schooling for those <br>students who live in communities that do not have public education <br>facilities because of insufficient student density.  For these <br>students, the state will pay grants directly to qualified private <br>educational institutions to subsidize their schooling, provided the <br>institutions are "non-sectarian" in nature. <br>         Plaintiff-Appellants are the parents of students who are <br>otherwise qualified to receive the benefits of this state-created <br>subsidy, except that they have chosen to send their children to <br>private sectarian schools.  After Maine refused to fund their <br>chosen sectarian institution, St. Dominic's Regional High School in <br>Lewiston, Maine, the parents brought an action in the United States <br>District Court for the District of Maine alleging numerous <br>violations of their rights under: (1) the Establishment Clause; (2) <br>the Equal Protection Clause; (3) the Free Exercise Clause; (4) the <br>Due Process Clause of the Fourteenth Amendment; and (5) the Speech <br>Clause of the First Amendment. <br>         The district court framed the issue before it as "whether <br>Maine is constitutionally required to extend subsidies to sectarian <br>schools."  It viewed plaintiff-appellants' arguments "in terms of <br>free exercise claims, establishment clause claims, equal protection  <br>claims and substantive due process claims," but found "it <br>unnecessary to address [them] separately or to analyze the various <br>tests that have been enumerated," because "[t]he same answer is <br>obvious for all."  Concluding that although plaintiff-appellants <br>were free to send their children to sectarian schools, "they do not <br>have a right to require taxpayers to subsidize that choice," the <br>district court rejected their claims and granted summary judgment <br>in favor of defendant-appellees.  This appeal followed. <br>         Below we address seriatim each of the bases on which the <br>plaintiffs' claim an entitlement to relief. <br>                            DISCUSSION <br>I.  Establishment Clause <br>         First, plaintiff-appellants argue that the statute, <br> 2591(2), violates the Establishment Clause because, rather than <br>treating religion neutrally, it demonstrates a hostility toward <br>religion by excluding otherwise eligible sectarian schools from the <br>tuition program based solely on the religious viewpoint presented <br>by these schools. <br>         Although "this Nation's history has not been one of <br>entirely sanitized separation between Church and State," Committee <br>for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 760 <br>(1993), and while various forms of aid to religious institutions <br>are permissible and have been approved by the somewhat inscrutable <br>guidelines of the Supreme Court, there is no binding authority for  <br> <br>the proposition that the direct payment of tuition by the state to <br>a private sectarian school is constitutionally permissible.  See <br>id. at 780. <br>         A statement to the effect that "Congress shall make no <br>law respecting the establishment of religion," U.S. Const. amend. <br>I, is hardly equivocal language.  The fact that it is the first of <br>the several constitutional do's and don'ts contained in the Bill of <br>Rights may not have been coincidental.  Separation of church and <br>state constituted a paramount principle and goal in the minds of <br>some of the most influential of the Framers both by dint of <br>historical experience, and personal conviction. <br>         We highlight the proposition that in some cases in which <br>state infringement on the free exercise of religion takes place, <br>otherwise prohibited conduct may be permitted if the state <br>establishes an overriding societal interest. Upholding the <br>Establishment Clause, which is aimed at avoiding an entangled <br>church and state, is such a paramount interest.  In the long run, <br>an entanglement of the two has been shown by history to be <br>oppressive of religious freedom.  See Nyquist, 413 U.S. at 760; <br>Engel v. Vitale, 370 U.S. 421, 431 (1962) (such a union may tend <br>"to destroy government and to degrade religion."); Everson, 330 <br>U.S. at 12 ("cruel persecutions were the inevitable result of <br>government established religions.").  The present case, in which <br>direct subsidies would be paid by the state to a sectarian primary <br>and secondary school, is such an imbroglio. <br>         In Nyquist, New York created a two-part program to help <br>defray the costs of educating low-income children who chose to <br>attend private religious schools.  See 413 U.S. at 762-67.  The <br>first part of the program provided for direct money grants from the <br>State to "qualifying" nonpublic schools to be used for the <br>"maintenance and repair of . . . school facilities and equipment to <br>ensure the health, welfare and safety of enrolled pupils."  Id. at <br>762.  The second part involved tuition reimbursement grants which <br>the state gave to low-income parents of private schoolchildren <br>(including those who attended religious schools) as partial <br>reimbursement for their children's tuition, and limited state <br>income tax relief for parents who did not qualify for the tuition <br>reimbursement.  See id. at 764.  The Court concluded that all three <br>programs were invalid under the Establishment Clause because they <br>had the primary effect of advancing religion.  See id. at 774-94.  <br>With reference to the reimbursement portion of the law, the Court <br>stated: <br>                      There can be no question that these grants <br>           could not, consistently with the <br>           Establishment Clause, be given directly to <br>           sectarian schools, since they would suffer <br>           from the same deficiency that renders <br>           invalid the grants for maintenance and <br>           repairs. In the absence of an effective <br>           means of guaranteeing that the state aid <br>           derived from public funds will be used <br>           exclusively for secular, neutral, and <br>           nonideological purposes, it is clear from <br>           our cases that direct aid in whatever form <br>           is invalid. <br>   <br>Id. at 780 (emphasis added). <br>         This dichotomy between direct and indirect aid is a <br>recurring theme throughout Establishment Clause litigation.  <br>Although not all cases fit neatly within this formula, and this <br>somewhat tenuous distinction has been the subject of considerable <br>criticism by academia, it is the closest thing that we have to a <br>workable bright line rule, or that perhaps is possible. <br>         Nevertheless, one thing is certain: the Supreme Court has <br>never permitted broad sponsorship of religious schools.  In those <br>instances in which the Court has permitted funding to flow to <br>religious schools, it has been in the context of a targeted grant, <br>available to a limited population, for a specific purpose.  See,  <br>e.g., Agostini v. Felton, 521 U.S. 203 (1997) (upholding a <br>federally funded program providing supplemental, remedial <br>instruction to disadvantaged children on a neutral basis, taught on <br>the premises of sectarian schools by government employees); Zobrest <br>v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) (holding that <br>providing a deaf student with a government-paid sign language <br>interpreter who accompanies the student to classes in a sectarian  <br>school does not violate the Establishment Clause). "The problem, <br>like so many problems in constitutional law, is one of degree."  <br>Meek, 421 U.S. at 359 (citation and internal quotation marks <br>omitted).  We find no authority in the Court's jurisprudence for <br>now extending state support of sectarian schools from beyond the <br>class of particular, limited situations described above.  See supra <br>note 5. <br>         Moreover, reliance by plaintiff-appellants on the Supreme <br>Court's decision in Rosenberger v. Rector & Visitors of University <br>of Virginia, 515 U.S. 819 (1995), is misplaced. In Rosenberger, the <br>University of Virginia, a state instrumentality, authorized payment <br>to outside contractors for the printing costs of a variety of <br>publications issued by several student organizations.  These <br>payments, made from an activities fund generated by imposing <br>mandatory student fees, were  designed to support a broad range of <br>extracurricular student activities related to the University's <br>educational purpose.  The University withheld authorization for <br>payments to a printer with respect to one student organization's <br>publication because it deemed it to be contrary to University <br>guidelines prohibiting aid to religious organizations or <br>activities.  The student organization in question, as well as the <br>publications for which printing costs were sought, promoted a <br>"Christian" viewpoint.  The University's denial of printing <br>payments was successfully challenged by the student organization on <br>the basis of viewpoint discrimination.  See id. at 832-35; see also  <br>Regan v. Taxation with Representation, 461 U.S. 540 (1983) (holding <br>that the state cannot discriminate based on the viewpoint of <br>private persons whose speech it subsidizes). <br>         In answering the University's concerns that such payments <br>might run afoul of the First Amendment, the Court ruled that the <br>funding did not contravene the Establishment Clause because it was <br>"neutral towards religion."  Id. at 840.  The neutrality of the <br>program, the Court reasoned, distinguished it from a tax levied to <br>directly support a church.  See id.  There is a critical <br>difference "between government speech [or action] endorsing <br>religion, which the Establishment Clause forbids, and private <br>speech [or action] endorsing religion, which the Free Speech and <br>Free Exercise Clauses protect." Id. at 843 (emphasis in original, <br>internal quotation marks omitted). <br>         Most telling, from the perspective of the present case, <br>is the majority's analysis of the issues presented by that appeal: <br>                      The Court of Appeals (and the dissent) are <br>           correct to extract from our decisions the <br>           principle that we have recognized special <br>           Establishment Clause dangers where the <br>           government makes direct money payments to <br>           sectarian institutions.  The error is not <br>           in identifying the principle, but in <br>           believing that it controls this case . . . <br>           [T]he Court of Appeals decided a case that <br>           was, in essence, not before it, and the <br>           dissent would have us do the same. We do <br>           not confront a case where, even under a <br>           neutral program that includes nonsectarian <br>           recipients, the government is making <br>           direct money payments to an institution or <br>           group that is engaged in religious <br>           activity . . . . [T]he undisputed fact <br>           [is] that no public funds flow directly to <br>           [the student organization's] coffers." <br> <br>Id. at 842 (emphasis added, internal citations omitted). <br>         In lauding neutrality as the keystone of Establishment <br>Clause jurisprudence, plaintiff-appellants forget that neutrality <br>is but one "hallmark of the Establishment Clause." Rosenberger, 514 <br>U.S. at 846 (O'Connor, J., concurring). Rosenberger neither <br>trumpets the supremacy of the neutrality principle nor signals the <br>demise of the funding prohibition in Establishment Clause <br>jurisprudence.  See id. at 852 (O'Connor, J., concurring). <br>         The historic barrier that has existed between church and <br>state throughout the life of the Republic has up to the present <br>acted as an insurmountable impediment to the direct payments or <br>subsidies by the state to sectarian institutions, particularly in <br>the context of primary and secondary schools.  See Tilton v. <br>Richardson, 403 U.S. at 684-87 (relying on the lessened danger of <br>prohibited entanglement when college level institutions are <br>involved); Hart v. McNair, 413 U.S. 734 (1973) (upholding the <br>creation of a public agency designed to assist in the placement of <br>revenue bonds for the construction of buildings designed for <br>secular use at higher education facilities including parochial <br>colleges).  Although the guidance provided by the Supreme Court has <br>been less than crystalline, perhaps often by necessity due to the <br>subject matter involved, approving direct payments of tuition by <br>the state to sectarian schools represents a quantum leap that we <br>are unwilling to take.  Creating such a breach in the wall <br>separating the State from secular establishments is a task best <br>left for the Supreme Court to undertake. <br>         Finally, we are at a loss to understand why plaintiff- <br>appellants believe that the Establishment Clause gives them a basis <br>for recovery.  The Establishment Clause forbids the making of a law <br>respecting the establishment of any religion.  There is no relevant <br>precedent for using its negative prohibition  as a basis for <br>extending the right of a religiously affiliated group to secure <br>state subsidies. <br>II.  Equal Protection <br>         Plaintiff-appellants argue that in addition to violating <br>the Establishment Clause, Maine's alleged hostility towards <br>religion violates their rights under the Equal Protection Clause of <br>the Fourteenth Amendment.  They claim that by virtue of the statute <br>in question they are being discriminated against on the basis of <br>religion, religious beliefs, speech content, and association. <br>         Plaintiff-appellants' equal protection claims fail for <br>many of the same reasons that their Establishment Clause challenge <br>founders.  Writ simple, the state cannot be in the business of <br>directly supporting religious schools.  Plaintiff-appellants' equal <br>protection claims fail, because, regardless of the appropriate <br>level of scrutiny we employ, the state's compelling interest in <br>avoiding an Establishment Clause violation requires that the <br>statute exclude sectarian schools from the tuition program. <br>         Plaintiff-appellants allege on appeal that they "have <br>been singled out simply because they desire their children to be <br>educated in a Christian environment and from a biblical <br>perspective, and for no other reason."  Appellants' Br. at 23-24.  <br>Plaintiff-appellants desire that the state pay grants directly to <br>sectarian schools, in this case St. Dominic's, to subsidize their <br>children's schooling.  Given the present state of jurisprudence, we <br>can see no way in which this can be done without violating the <br>Establishment Clause.  See Nyquist, 413 U.S. at 780.  As a result, <br>we find no Equal Protection Clause violation. <br>         We are fortified in our conclusion by the Maine Supreme <br>Court's recent opinion in Bagley v. Raymond School Department, -- <br>A.2d --, No. 98-281, 1999 WL 236464 (Me. April 23, 1999),  dealing <br>with a similar situation.  In resolving a similar Equal Protection <br>Clause challenge, the court stated: <br>                    That state funds would flow directly into <br>         the coffers of religious schools in Maine were <br>         it not for the existing exclusion cannot be <br>         debated.  If the religious school exclusion <br>         were eliminated, the State would likely pay <br>         more than $5,000 per student to Cheverus High <br>         School, without restriction on the use of <br>         those funds.  In the entire history of the <br>         Supreme Court's struggle to interpret the <br>         Establishment Clause it has never concluded <br>         that such a direct, unrestricted financial <br>         subsidy to a religious school could escape the <br>         strictures of the Establishment Clause.  While <br>         it may be possible for the legislature to <br>         craft a program that would allow parents <br>         greater flexibility in choosing private <br>         schools for their children, the current <br>         program could not be easily tailored to <br>         include religious schools without addressing <br>         significant problems of entanglement or the <br>         advancement of religion. <br> <br>Bagley, slip. op. at 40-41. <br>III.  Free Exercise <br>         Plaintiff-appellants argue that  2951(2) violates the <br>Free Exercise Clause of the First Amendment because it excludes <br>funding of sectarian education solely on the basis of religion.  <br>However, we conclude that the Free Exercise Clause is not <br>implicated here.  See Sherbert v. Verner, 374 U.S. 398, 412 (1963) <br>(Douglas, J., concurring) ("[T]he Free Exercise Clause is written <br>in terms of what the government cannot do to the individual, not in <br>terms of what the individual can exact from the government."). <br>         Four points support our conclusion.  First, at least some <br>of the parents in this litigation eschew any religious motivation <br>for wishing to attend St. Dominic's.  For them, academic <br>superiority, rather than the school's Roman Catholic affiliation, <br>drives their enrollment decisions. <br>         Second, no one plausibly reading the statute could come <br>to any conclusion other than that  2591(2) does not prevent <br>attendance at a religious school.  Nor does  2591(2) prevent <br>religious education of children in Maine.  All it means is that the <br>cost of religious education must be borne by the parents and not <br>the state. <br>         Third, Hernndez v. Commissioner, 490 U.S. 680, 699 <br>(1988), identifies the free exercise inquiry as asking "whether <br>government has placed a substantial burden on the observation of a <br>central belief or practice." (emphasis added).  Factually speaking, <br>education at a parochial school is not such a belief, for the Roman <br>Catholic Church does not mandate it.  See Catechism of the Catholic <br>Church 537-38 (1994) (stating that parents' responsibilities for <br>religious education for religious education takes place primarily <br>in the home and that choosing a religious school is a right but not <br>an absolute duty).  To be sure, the Catholic Church requires some <br>religious education, see id. at 538, but as stated above,  2591(2) <br>does not prevent such religious education.  Indeed, it says nothing <br>about it.  Moreover, no parent makes the claim that attendance at <br>a religious school is a central tenet or practice of their faith. <br>         Fourth, the primary case cited by the parents, Church of <br>the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 <br>(1993), is inapposite.  In that case, the record showed a <br>substantial animus against Santera that motivated the law in <br>question.  See id. at 543 (stating that the "record in this case <br>compels the conclusion that suppression of the central element of <br>the Santeria worship service was the object of the ordinances.").  <br>No such showing has been made here. <br>         As we mentioned earlier, even if this were a limit on <br>free exercise, the state has justified the limit by its purpose of <br>avoiding violation of the Establishment Clause. <br>IV.  Due Process and Speech Clause Claims <br>         Plaintiff-appellants argue that  2951(2) violates the <br>Due Process Clause of the Fourteenth Amendment and the Speech <br>Clause of the First Amendment by preventing appellants from using <br>their tuition allotments to expose their children to the <br>educational message which best reflects their morals and values.   <br>         First, the parents argue that they have a fundamental <br>right to direct the upbringing and education of their children <br>based on substantive due process rights that arise from Supreme <br>Court decisions.  See, e.g., Pierce v. Society of Sisters, 268 U.S. <br>510 (1925).  On that general proposition, we do not disagree.  <br>However, that fundamental right does not require the state to <br>directly pay for a sectarian education. Here, the statute does not <br>prevent the parents from doing what they wish; it only prevents the <br>state from helping pay for their wishes.  We reject this contention <br>out of hand.   <br>         Second, on the free speech side, plaintiff-appellants <br>contend that  2591(2) violates plaintiff-appellant's their rights <br>because it denies parents the right to communicate and instruct <br>their children in the areas of religion, morals and ethics which <br>they cannot accomplish in non-sectarian schools.  With little more <br>than academic articles to bolster their view, we find this claim to <br>be meritless as well. <br>                            CONCLUSION <br>         The judgment of the district court is affirmed.  Costs <br>are imposed against appellants. <br> <br> <br>                                   "Concurrence to follow"

         CAMPBELL, Senior Circuit Judge, concurring.  I agree that <br>plaintiffs have not shown that Maine's statute subsidizing <br>attendance at non-sectarian private schools, in communities lacking <br>public schools, is unconstitutional.  But I see no need for this <br>court to decide that a broader statute (i.e., one also subsidizing <br>attendance at sectarian private schools) would violate the <br>establishment clause of the First Amendment ("Congress shall make <br>no law respecting an establishment of religion"). <br>         For the reasons stated by my colleagues, supra, I agree <br>that the Maine statute, as presently written, does not violate the <br>free exercise clause of the First Amendment nor principles of <br>substantive due process. <br>         My colleagues and I part company, however, in our <br>analysis of plaintiffs' establishment clause and equal protection <br>clause claims.  The Maine tuition statute was narrowed in 1981 to <br>exclude religiously-affiliated schools in response to a decision of <br>the Maine Attorney General concluding that the inclusion of <br>religiously-affiliated schools in Maine's tuition program violated <br>the establishment clause of the federal Constitution.  See Bagley, <br>et al. v. Raymond School Department, -- A.2d --, 1999 WL 236464 <br>(Me. April 23, 1999).  Last month, the Maine Supreme Judicial Court <br>upheld the continued constitutionality of the exclusion of <br>sectarian schools, holding that to fund them would violate the <br>establishment clause.  My colleagues apparently believe, as did the <br>Maine court, that since the Maine legislature excluded sectarian <br>schools because of establishment clause concerns, the latter must <br>be addressed by us: the Maine court, indeed, suggested that if <br>allowing tuition benefits to the sectarian schools would not <br>violate the establishment clause, then denying such benefits would <br>violate the equal protection clause, as denial would not then <br>withstand even the minimal, "rational basis," scrutiny under the <br>Constitution's equal protection clause.  In such event, plaintiffs <br>would have succeeded in demonstrating that the current statute is <br>unconstitutional, being violative of the equal protection clause. <br>         While I understand the above rationale, I think it goes <br>further than necessary.  I prefer not to render an opinion based on <br>speculation as to the constitutionality of a statute different from <br>the one under discussion.  Contrary to what my colleagues seem to <br>suggest, supra, ours is not a case that involves the "imbroglio" of <br>direct subsidies paid to sectarian schools.  Rather, the Maine <br>legislature, acting on the basis of an opinion issued by its <br>Attorney General, has expressly excluded sectarian schools from the <br>possibility of receiving subsidies.  The question is whether the <br>current statute is unconstitutional, not whether a more inclusive <br>one would be. <br>         Plaintiffs argue that various constitutional provisions, <br>including, oddly, the establishment clause itself, are offended by <br>denying tuition benefits to sectarian schools.  But none of <br>plaintiffs' theories of unconstitutionality work.  The  <br>establishment clause certainly provides plaintiffs with no <br>affirmative basis for requiring the funding of sectarian schools, <br>for reasons well explained by the Maine Supreme Judicial Court in <br>its recent  decision, -- A2d at -- , 1999 WL 236464 at 5, and by my <br>colleagues. <br>         Because plaintiffs' attempt to use the establishment <br>clause as a sword fails, and because the Maine statute does not, <br>for the reasons stated by my colleagues, violate the free exercise <br>clause, no fundamental right is implicated here for equal <br>protection purposes.  Thus, the proper level of scrutiny under the <br>equal protection clause is the most deferential - rational basis <br>review.  See Johnson v. Robison, 415 U.S. 361, 375 n.14 (1974) <br>(where Act did not violate appellee's right of free exercise of <br>religion, court has no occasion to apply a standard of scrutiny <br>stricter than rational basis test); see also Griffin High School v. <br>Illinois High School Ass'n, 822 F.2d 671, 674 (7th Cir. 1987). <br>         In my view, plaintiffs' equal protection clause claim <br>fails not because, as my colleagues conclude, the Maine Attorney <br>General's opinion relied upon by the legislature was necessarily <br>correct that including sectarian schools would or might violate the <br>establishment clause, hence was better left alone.  Rather, the <br>action of the Maine legislature need only be supported by a <br>rational basis, not one that turns out to be correct on the merits.  <br>Rational basis review is "a paradigm of judicial restraint" . . . <br>and "[w]here there are 'plausible reasons' for [the action of the <br>legislature], 'our inquiry is at an end.'"  FCC v. Beach <br>Communications, Inc., 508 U.S. 307, 314 (1993)(quoting United <br>States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980)).  <br>See also Western & Southern Life Ins. Co. v. State Bd. of <br>Equalization, 451 U.S. 648, 672 (1981) ("the Equal Protection <br>Clause is satisfied if we conclude that the California Legislature <br>rationally could have believed" that the measure promoted its <br>objectives) (emphasis in original). <br>         The Maine legislature rationally could have believed that <br>including sectarian schools within its funding scheme would or <br>might violate the establishment clause, hence was better left <br>alone.  Several opinions of the United States Supreme Court cited <br>by my colleagues and by the Maine Supreme Judicial Court <br>undoubtedly lend support to such a viewpoint.  See, e.g., Committee <br>for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973).  <br>These precedents are not conclusive, however, and many commentators <br>interpret the more recent cases as indicating  that the Supreme <br>Court will uphold state tuition schemes that provide funding to <br>sectarian as well as non-sectarian schools.  The fact is that <br>establishment clause jurisprudence as applied to this particular <br>area is so unclear today that no court other than the Supreme Court <br>can reliably resolve whether a statutory scheme like Maine's would <br>violate the establishment clause were it to fund sectarian as well <br>as non-sectarian schools.  In spite of this uncertainty, however, <br>the Maine legislature's fear, based on its Attorney General's <br>analysis, that including sectarian schools would violate the <br>establishment clause was and remains entirely rational.  While the <br>odds were perhaps stronger in 1981 than they are today, existing <br>case law still provides a reasonable basis for legislative refusal <br>to extend tuition grants to sectarian schools.  I see the Maine <br>legislature, in 1981 and to this moment, as having rationally and <br>prudently excluded sectarian schools because of a well-founded <br>concern - whether or not ultimately correct - that to do otherwise <br>will or may violate the establishment clause.  The existence of <br>that fear is rational enough, I think, to meet equal protection <br>(and free exercise) requirements, however defined. <br>         This is not to say that the Supreme Court may not  <br>someday decide that inclusion of sectarian schools in a scheme like <br>this is permissible under the establishment clause.  A strong <br>argument can be made to that effect.  Were the Supreme Court to so <br>rule, plaintiffs might then be in a position to seek relief on free <br>exercise or equal protection grounds, for under those circumstances <br>the legislative basis for the exclusion of sectarian schools - the <br>fear that the establishment clause bars their inclusion - will have <br>been negated.  But in today's climate, lacking further Supreme <br>Court enlightenment, plaintiffs cannot demonstrate that the Maine <br>statute violates any provision of the Constitution.  Accordingly, <br>I agree that we should affirm the judgment of the district court, <br>but - like that court - I see no need whatever to reach out and <br>decide the thorny establishment clause issue -- an issue that, as <br>my colleagues also recognize, can be meaningfully resolved only by <br>the Supreme Court itself.</pre>

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