United States Court of Appeals
For the First Circuit
No. 04-1496
JOHN EULITT AND BELINDA EULITT, AS PARENTS AND
NEXT FRIENDS OF CATHLEEN N. EULITT, ET AL.,
Plaintiffs, Appellants,
v.
STATE OF MAINE, DEPARTMENT OF EDUCATION, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Schwarzer,* Senior District Judge.
Stephen C. Whiting, with whom The Whiting Law Firm, P.A. was
on brief, for appellants.
Paul Stern, Deputy Attorney General, with whom G. Steven Rowe,
Attorney General, William H. Laubenstein, III, and Sarah A.
Forster, Assistant Attorneys General, were on brief, for appellees.
__________
*Of the Northern District of California, sitting by designation.
Robert H. Chanin, Andrew D. Roth, Laurence Gold, Bredhoff &
Kaiser, P.L.L.C., Elliott M. Mincberg, Judith E. Schaeffer, Ayesha
N. Khan, Zachary L. Heiden, Jeffrey A. Thaler, and Bernstein, Shur,
Sawyer & Nelson, P.A. on consolidated brief for Maine Education
Association, National Education Association, Americans United for
Separation of Church and State, People for the American Way
Foundation, and Maine Civil Liberties Union, amici curiae.
October 22, 2004
SELYA, Circuit Judge. This case calls upon us to decide
whether the Equal Protection Clause requires Maine to extend
tuition payments to private sectarian secondary schools on behalf
of students who reside in a school district that makes such
payments available on a limited basis to private nonsectarian
secondary schools. We hold that the Equal Protection Clause does
not impose any such obligation. Accordingly, although our
reasoning differs from that of the district court, we affirm the
entry of summary judgment in the defendants' favor.
I. BACKGROUND
By statute, Maine commits to providing all school-aged
persons with "an opportunity to receive the benefits of a free
public education," Me. Rev. Stat. Ann. tit. 20-A, § 2(1) (West
2004), and vests authority in local school districts to fulfill
that undertaking by maintaining and supporting elementary and
secondary education, id. §§ 2(2), 4501. School districts, known in
Maine's bureaucratic argot as school administrative units, enjoy
some flexibility in administering this guarantee. They may satisfy
the state mandate in any of three ways: by operating their own
public schools, see id. § 1258(1), by contracting with outside
public schools to accept their students, see id. §§ 1258(2), 2701;
or by paying private schools to provide such an education, see id.
§§ 2951, 5204(4). State law bars a school district that exercises
-3-
the third option from paying tuition to any private sectarian
school. Id. § 2951(2).
The town of Minot comprises a school administrative unit.
It has decided to operate its own grade school (kindergarten
through eighth grade), but has chosen to outsource secondary
education. To this end, Minot has contracted with a neighboring
school district — the town of Poland — to educate at least 90% of
its eligible students at Poland Regional High School (PRHS). The
contract gives Minot the right to send up to 10% of its high
schoolers to other approved nonsectarian secondary schools (private
or public) so long as those students can demonstrate that they have
educational needs that PRHS cannot satisfy. The superintendent of
School Union #29, which consists of the school administrative units
of Poland, Mechanic Falls, and Minot, reviews applications for such
alternative placements on a case-by-case basis. By operation of
section 2951(2), however, sectarian schools cannot win approval for
publicly funded tuition payments (and, thus, Minot cannot
underwrite tuition for youths seeking to attend such schools).
John and Belinda Eulitt and Kelly J. MacKinnon are
parents residing in Minot who, on their own dime, send their
daughters to St. Dominic's Regional High School, a Catholic
secondary school that is indisputably sectarian. They believe
that, under Minot's education plan, the state and the town should
pay tuition directly to St. Dominic's on behalf of their daughters
-4-
because PRHS does not offer classes in Catholic doctrine or teach
from a Catholic viewpoint (and, therefore, does not meet the full
range of their daughters' educational needs). The parents have not
submitted formal applications for such funding because section
2951(2), which forbids the payment of public dollars to sectarian
schools, would prevent the superintendent from approving any such
applications. Instead, as parents and next friends of their
daughters, they brought suit in Maine's federal district court
against various state educational authorities. Pertinently, their
complaint alleged that section 2951(2)'s restriction on the
approval of sectarian schools for placements funded by public
tuition payments violates the Equal Protection Clause of the
Fourteenth Amendment because that restriction discriminates on the
bases of religion, religious speech, and viewpoint. Additionally,
the complaint asserted a separate equal protection claim on behalf
of St. Dominic's, in which the parents argued that section 2951(2)
strips the school of equal protection of the laws because it denies
the school the ability to receive public funds for providing
secondary education services even though it allows private
nonsectarian schools to receive such stipends.
In due course, the parties cross-moved for summary
judgment. The district court referred the motions to a magistrate
judge who recommended, inter alia, that summary judgment be granted
in favor of the defendants on the equal protection claims. Eulitt
-5-
v. Me. Dep't of Educ., No. 02-162, 2003 WL 21909790, at *4 (D. Me.
Aug. 8, 2003). The magistrate judge ruled that the Equal
Protection Clause does not compel the provision of public funds to
private sectarian schools, even when a school district has chosen
to subsidize the payment of tuition to private nonsectarian schools
on a limited basis. Id. at *3-4. On objection, see 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b), the district court concurred with
the magistrate judge's recommended decision, but it did so solely
on the ground that this court's decision in Strout v. Albanese, 178
F.3d 57 (1st Cir. 1999), had "authoritatively answered exactly the
same questions Plaintiffs now urge this Court to decide," and,
therefore, pretermitted further inquiry under the doctrine of stare
decisis. Eulitt v. Me. Dep't of Educ., 307 F. Supp. 2d 158, 161
(D. Me. 2004). This appeal ensued.
II. ANALYSIS
The appellants hawk three propositions on appeal. First,
they urge that the doctrine of stare decisis does not foreclose
consideration of their substantive claims. Second, they contend
that the Establishment Clause does not compel Maine to eschew
public funding of sectarian education (and, hence, does not prevent
the state from providing the redress that they seek). Third, they
asseverate that section 2951(2) violates the Equal Protection
Clause because it discriminates on the bases of religion, religious
-6-
speech, and viewpoint. We consider these propositions
sequentially.
A. Stare Decisis.
As a general matter, the doctrine of stare decisis
precludes the relitigation of legal issues that have previously
been heard and authoritatively determined. Stewart v. Dutra
Constr. Co., 230 F.3d 461, 467 (1st Cir. 2000). In other words,
stare decisis "renders the ruling of law in a case binding in
future cases before the same court or other courts owing obedience
to the decision." Gately v. Massachusetts, 2 F.3d 1221, 1226 (1st
Cir. 1993) (emphasis in original). For present purposes, the
question reduces to whether our earlier decision in Strout
constitutes such a bar.
Strout arose in a very similar posture. There, we upheld
the constitutionality of section 2951(2) against equal protection,
establishment, and free exercise challenges brought by parents (not
the present plaintiffs) who sought public funding for their
children's matriculation at St. Dominic's. Strout, 178 F.3d at 64-
65. The Strout panel rejected the equal protection challenge
because Maine had shown a compelling interest in avoiding an
Establishment Clause violation through the exclusion of sectarian
schools from its secondary education tuition program. Id. at 64.
Two members of the panel further speculated, in dictum, that if
Maine's proffered interest had been found to depend upon an
-7-
erroneous understanding of the Establishment Clause (that is, if it
had been determined that payments to sectarian schools were
permissible under that clause), then the state's exclusion of
sectarian schools from the tuition program would not withstand
scrutiny. Id. at 64 n.12.
Three years later, the Supreme Court decided Zelman v.
Simmons-Harris, 536 U.S. 639 (2002). That opinion altered the
landscape of Establishment Clause jurisprudence in the school
finance context by upholding a program that allowed income-
qualified parents in Cleveland to elect to apply state-funded
school vouchers toward their children's tuition at private
sectarian schools. Id. at 644-46, 663. The Zelman Court announced
that indirect public aid to sectarian education is constitutionally
permissible when the financial assistance program has a valid
secular purpose, provides benefits to a broad spectrum of
individuals who can exercise genuine private choice among religious
and secular options, and is neutral toward religion. Id. at 662-
63.
Last term, the Supreme Court again addressed the
application of the First Amendment to educational funding issues.
The Court upheld a Washington state college scholarship program
that prohibited the application of scholarship funds toward the
pursuit of a devotional theology degree. Locke v. Davey, 124 S.
Ct. 1307, 1309 (2004). In so doing, the Court reaffirmed that
-8-
"'there is room for play in the joints'" between the Religion
Clauses. Id. at 1311 (quoting Walz v. Tax Comm'n, 397 U.S. 664,
669 (1970)). By this, the Davey Court meant that "there are some
state actions permitted by the Establishment Clause but not
required by the Free Exercise Clause." Id.
The Zelman opinion raises the distinct possibility that
Strout's view of Maine's asserted interest depended upon an
incorrect interpretation of the Establishment Clause's strictures.
Davey also casts doubt on the reasoning of Strout because it
clarifies, and subtly alters, the decisional framework to be
applied to equal protection claims that are rooted in allegations
of religious discrimination. The district court nevertheless
declined to consider the effects of Zelman and Davey on the
continuing vitality of Strout. We do not find fault with that
cautious approach. See Crowe v. Bolduc, 365 F.3d 86, 94 (1st Cir.
2004) (noting that district court correctly regarded circuit
precedent as "good law" even though a subsequent Supreme Court
dictum had "presaged the demise" of the rule stated therein).
Until 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. See Sarzen v. Gaughan, 489 F.2d 1076, 1082 (1st Cir.
1973) (explaining that stare decisis requires lower courts to take
binding pronouncements "at face value until formally altered"); cf.
-9-
Agostini v. Felton, 521 U.S. 203, 237-38 (1997) (reaffirming that
the Court has the prerogative to overrule its own decisions).
We are, of course, in a somewhat different position.
Even though "our precedent-based system of justice places a premium
on finality, stability, and certainty in the law," Stewart, 230
F.3d at 467, "stare decisis is neither a straightjacket nor an
immutable rule," Carpenters Local Union No. 26 v. U.S. Fid. & Guar.
Co., 215 F.3d 136, 142 (1st Cir. 2000). Thus, a panel of the court
of appeals has some flexibility, modest though it may be, with
respect to its own precedents.
Ordinarily, newly constituted panels in a multi-panel
circuit should consider themselves bound by prior panel decisions.
See United States v. Rodriguez, 311 F.3d 435, 438-39 (1st Cir.
2002); United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991).
This rule is a specialized application of the stare decisis
principle. It is, however, subject to at least two exceptions,
either of which may warrant a departure from a prior holding.
The first exception comes into play when a preexisting
panel opinion is undermined by subsequently announced controlling
authority, such as a decision of the Supreme Court, a decision of
the en banc court, or a statutory overruling. Williams v. Ashland
Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995). That exception does
not apply here. Although Zelman did confirm that the state may
provide funding for sectarian education in certain instances, see
-10-
Zelman, 536 U.S. at 662-63, the decision depended upon the Court's
careful consideration of the facts underlying the Cleveland voucher
program, see id. at 653-57. Even after Zelman and Davey, it is
fairly debatable whether or not the Maine tuition program could
survive an Establishment Clause challenge if the state eliminated
section 2951(2) and allowed sectarian schools to receive tuition
funds.1 Thus, the newly emergent Supreme Court case law does not
necessarily undercut the Strout panel's premise, 178 F.3d at 64 &
n.12, that Maine could not extend funding to sectarian schools
under its program without violating the Establishment Clause.
A second exception exists when recent Supreme Court
precedent calls into legitimate question a prior opinion of an
inferior court. Carpenters Local Union No. 26, 215 F.3d at 141;
see also Crowe, 365 F.3d at 89, 92. In that context, a reviewing
court must pause to consider the likely significance of the
neoteric Supreme Court case law before automatically ceding the
field to an earlier decision. See Williams, 45 F.3d at 592
(explaining that stare decisis may yield in "those relatively rare
instances in which authority that postdates the original decision,
1
Without belaboring the point, we note that the Maine program
is substantially narrower than the "broad[] undertaking by the
State to enhance educational options" that was under scrutiny in
Zelman, 536 U.S. at 647. Moreover, Maine's scheme provides for the
approval of applications based on an individualized assessment of
educational benefit, whereas the Cleveland program employed only
objective criteria of financial need and residency. See id. at
662.
-11-
although not directly controlling, nevertheless offers a sound
reason for believing that the former panel, in light of fresh
developments, would change its collective mind").
We think that this exception applies here. In Strout,
the panel explicitly relied on "the present state of jurisprudence"
in determining that Maine's interest in excluding sectarian schools
from its tuition program would survive any level of scrutiny
because the Establishment Clause likely required the state to
maintain such an exclusion. Strout, 178 F.3d at 64. In reaching
this conclusion, the panel candidly observed that "the guidance
provided by the Supreme Court has been less than crystalline." Id.
Zelman and Davey obviously constitute significant developments in
the pertinent jurisprudence and shed new light on the case law upon
which the Strout decision hinged. If these decisions,
collectively, do not make the law crystalline, they at least
provide more focused direction than was available to the Strout
panel. Consequently, we find it incumbent upon us to reject a rote
application of stare decisis here and to undertake a fresh
analysis. See Arecibo Cmty. Health Care, Inc. v. Puerto Rico, 270
F.3d 17, 24 (1st Cir. 2001).
B. The Establishment Clause.
The appellants' second proposition invites us to
determine whether the state's asserted interest in maintaining
section 2951(2)'s parochial school exclusion in order to avoid an
-12-
Establishment Clause violation is a valid one. This proposition is
asserted out of order: because the response to it depends upon
what level of scrutiny we should apply in this case, the
proposition itself is not susceptible to consideration at a
preliminary point in our analysis. We explain briefly.
It cannot be gainsaid that Establishment Clause defenses
sometimes trigger consideration of hypothetical statutory schemes
to determine whether entanglement concerns actually justify a
particular feature of a challenged law. However, such defenses
should not be addressed until a court has identified the right at
issue and ascertained the level of scrutiny that attaches to it.
See, e.g., Good News Club v. Milford Cent. Sch., 533 U.S. 98, 112-
13 (2001) (weighing the validity of a school's Establishment Clause
defense after finding that the challenged restriction constituted
viewpoint discrimination and that strict scrutiny therefore
applied); Widmar v. Vincent, 454 U.S. 263, 270-71 (1981)
(determining first that religious group's exclusion from open forum
was discriminatory, and then reviewing school's Establishment
Clause defense for retaining its existing forum access policy
instead of adopting a hypothetical policy that would be more
inclusive). That sequence is particularly significant in view of
the time-honored axiom that federal courts should withhold decision
on vexing constitutional questions until consideration of those
questions becomes necessary. See Ala. State Fed'n of Labor v.
-13-
McAdory, 325 U.S. 450, 461 (1945) (noting that "[i]t has long been
[the Court's] considered practice not to decide abstract,
hypothetical or contingent questions, or to decide any
constitutional question in advance of the necessity for its
decision") (citations omitted); El Dia, Inc. v. Hernandez Colon,
963 F.2d 488, 494 (1st Cir. 1992) (similar).
That ends this aspect of the matter. Consideration of
the question that the appellants seek to pose — whether section
2951(2) or some similar restriction is indispensable to Maine's
obligation to keep its tuition program in compliance with the
Establishment Clause — is premature at this juncture. Instead, we
explore the contours of the right at issue and ascertain what level
of scrutiny an Establishment Clause defense would have to survive.
C. Equal Protection.
The heart of the appellants' claim is the proposition
that section 2951(2) violates both the equal protection rights of
St. Dominic's and the appellants' own equal protection rights (as
parents and next friends of their children) because the statute
discriminates on the bases of religion and religious speech.
Before untangling this argument, we first address the threshold
question of standing.
1. Standing. We start with the question whether the
appellants have standing to raise a constitutional claim on behalf
of St. Dominic's. An individual who asserts the constitutional
-14-
rights of a third party must, of course, satisfy the Article III
requirements of injury in fact, causation, and redressability with
respect to the third-party claim. See Valley Forge Christian Coll.
v. Americans United for Sep. of Church & State, Inc., 454 U.S. 464,
472 (1982). In addition, that party must satisfy the prerequisites
that arise from prudential limitations on the jurisdiction of the
federal courts, namely, that the litigant personally has suffered
an injury in fact that gives rise to a sufficiently concrete
interest in the adjudication of the third party's rights; that the
litigant has a close relationship to the third party; and that some
hindrance exists that prevents the third party from protecting its
own interests. Powers v. Ohio, 499 U.S. 400, 411 (1991); Playboy
Enters. v. Pub. Serv. Comm'n, 906 F.2d 25, 37 (1st Cir. 1990).
In the case at hand, the appellants contend that section
2951(2) causes them injury in fact because it compels the
superintendent to reject all applications for the funding of a high
school education at St. Dominic's on the ground that the school is
religiously oriented (and, thus, ineligible to receive tuition
payments). Therefore, the statute's restriction on the school
translates into the parents' inability to gain approval for the
public funding of their children's sectarian education. This link
between the appellants' interests and those of St. Dominic's may
suggest the type of special relationship that would support a
departure from the general proscription on jus tertii claims. See,
-15-
e.g., Craig v. Boren, 429 U.S. 190, 195 (1976) (finding vendor
satisfied jus tertii requirement to advocate for rights of third-
party consumers who may wish to purchase its wares); Pierce v.
Soc'y of Sisters, 268 U.S. 510, 535 (1925) (recognizing standing of
religious schools to assert the rights of potential pupils who
might seek access to their education services).
Assuming for argument's sake, but without deciding, that
both an injury and a sufficient relationship exist, the appellants
nonetheless stumble on the third step of the jus tertii standing
framework: they have wholly failed to show any obstacle preventing
St. Dominic's from bringing suit to protect itself against the
imagined infringements. The appellants have advanced no credible
suggestion either that St. Dominic's is generically unable to
assert its rights or that the circumstances of this case create
some idiosyncratic barrier to such a suit. Then, too, all of the
environmental factors point the other way. For one thing, section
2951(2) does not impose or threaten to impose any criminal or civil
penalty for any action that might be taken by sectarian schools.
Thus, this case does not fall into the isthmian category of cases
in which courts have recognized jus tertii standing because a third
party is understandably reluctant to engage in the allegedly
protected activity for fear of prosecution or other penalty.2 See,
2
The appellants alleged for the first time in their appellate
briefs that St. Dominic's faced an obstacle to suit arising out of
the risk of "reprisals" by the appellees (e.g., the loss of
-16-
e.g., Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973) (recognizing
third-party standing to bring First Amendment overbreadth claims).
For another thing, the appellants are not exposed to any criminal
or civil penalty because of their interaction with the school;
accordingly, cases in which the putative litigant faced such
penalties by providing assistance or service to the holder of the
third-party right are inapposite. See, e.g., Craig, 429 U.S. at
193-94 (finding third-party standing where litigant, a beer vendor,
faced sanctions and loss of license for sales to men between
eighteen and twenty years of age). And, finally, this case is not
one in which the right-holder has little or no financial incentive
to pursue suit or, alternatively, would face great difficulty in
demonstrating that the alleged injury was likely to reoccur. See,
e.g., Powers, 499 U.S. at 414-15 (noting that the barriers to suit
by a potential juror who believes he has been excluded because of
race are "daunting" because of the small financial stake involved
as well as the difficulty of proving that such discrimination would
recur).
At the expense of carting coal to Newcastle, we add that
the underlying justifications for the prudential limitation on
third-party standing could be thwarted were the appellants allowed
approved status for purposes of Maine's compulsory school laws).
This charge, in addition to being belated, is entirely without
foundation in the summary judgment record. We therefore reject it
out of hand.
-17-
to serve as proxy-holders for St. Dominic's. Those justifications
include the venerable tenet that "third parties themselves usually
will be the best proponents of their own rights." Singleton v.
Wulff, 428 U.S. 106, 114 (1976). They also include the wise
counsel that, sometimes, the holder of a right has reasons of its
own for not pursuing potential claims. See, e.g., Friedman v.
Harold, 638 F.2d 262, 265-66 (1st Cir. 1981). An exception to
these basic maxims sometimes is warranted because a congruence of
interests exists between a litigant and a third party. See Playboy
Enters., 906 F.2d at 38. Here, however, it is by no means apparent
that the appellants and St. Dominic's share a common interest; it
is entirely possible that the school has refrained from litigation
precisely because it is not interested in participating in Maine's
tuition program and thereby subjecting itself to any number of
concomitant state regulations. Cf., e.g., Am. Library Ass'n v.
Odom, 818 F.2d 81, 82 (D.C. Cir. 1987) (finding that researchers
seeking access to certain library materials could not assert
library's property rights); Friedman, 638 F.2d at 266 (finding that
bankruptcy trustee was an inappropriate party to assert certain
rights of debtor).
For these reasons, we hold that the appellants lack
third-party standing to advance St. Dominic's equal protection
claim.
-18-
This holding does not end our odyssey. Although the
appellants lack standing to pursue their jus tertii claim, they do
have standing in their own right to seek global relief in the form
of an injunction against the enforcement of section 2951(2) and a
declaration of the statute's unconstitutionality. The appellants
have established standing directly based on their allegation that
section 2951(2) effectively deprives them of the opportunity to
have their children's tuition at St. Dominic's paid by public
funding. Even though it is the educational institution, not the
parent, that would receive the tuition payments for a student whose
"educational requirements" application was approved, it is the
parent who must submit such an application and who ultimately will
benefit from the approval. Because section 2951(2) imposes
restrictions on that approval, the parents' allegation of injury in
fact to their interest in securing tuition funding provides a
satisfactory predicate for standing. See Bennett v. Spear, 520
U.S. 154, 168-69 (1997) (explaining that harm "produced by
determinative or coercive effect" upon a third party satisfies the
injury in fact requirement when the harm is "fairly traceable" to
that effect).
2. The Merits. We thus proceed to the merits of the
appellants' equal protection claim and consider whether recent
Supreme Court precedents, especially the Court's opinions in Zelman
and Davey, provide a sound basis for overturning Strout.
-19-
In undertaking this examination, we review the district
court's entry of summary judgment de novo, considering the record
and all reasonable inferences therefrom in the light most favorable
to the summary judgment losers (here, the appellants). Garside v.
Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990). Our
consideration is not inextricably linked to the district court's
stare decisis theory; rather, we may affirm the entry of summary
judgment on any independent ground fairly presented in the record.
Houlton Citizens' Coalition v. Town of Houlton, 175 F.3d 178, 184
(1st Cir. 1999).
The appellants first contend that section 2951(2)
discriminates against them on the basis of religion by forcing them
to choose between a publicly funded education and what they
describe as "their fundamental right[] of religion." Appellants'
Br. at 22. They attempt to position this harm under the rubric of
equal protection,3 avoiding any detailed reference to the Free
3
In their briefs, the appellants alternately invoke the
language of fundamental rights and suspect classifications. We
focus here on their claim of religion as a fundamental right. We
note, however, the hopelessness of any effort to suggest that those
who choose to send their children to religious schools comprise a
suspect class. The Supreme Court has taken a very limited approach
in recognizing suspect classifications. See, e.g., Johnson v.
Robison, 415 U.S. 361, 375 n.14 (1974) (describing criteria for
establishing a suspect classification). The traditional indicia of
suspect classification, such as immutable characteristics
determined by birth or membership in a group that is politically
powerless, are not present in this case. See id. (declining to
categorize group of religious conscientious objectors as a suspect
class); see also Corp. of the Presiding Bishop of the Church of
Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 325, 338-39
-20-
Exercise Clause even though that clause defines the scope of the
fundamental right to religion incorporated by the Fourteenth
Amendment's equal protection guarantee. See Johnson v. Robison,
415 U.S. 361, 375 n.14 (1974).
This crabbed approach will not wash. In Davey, the
Supreme Court clearly rejected this type of effort to erect a
separate and distinct framework for analyzing claims of religious
discrimination under the Equal Protection Clause. See Davey, 124
S. Ct. at 1312 n.3 (confirming that the Free Exercise Clause
provides the primary framework for assessing religious
discrimination claims). Along these lines, the Court held that if
a challenged program comports with the Free Exercise Clause, that
conclusion wraps up the religious discrimination analysis. See id.
Thus, rational basis scrutiny applies to any further equal
protection inquiry.4 See id.; see also Johnson, 415 U.S. at 375
(1987) (explaining that although laws that draw distinctions among
religions can give rise to a suspect classification triggering
strict scrutiny, provisions that distinguish generally between
secular and religious entities engender rational basis scrutiny).
4
The majority in Strout found it unnecessary to articulate the
particular level of scrutiny it employed in rejecting the equal
protection challenge. Strout, 178 F.3d at 64. To the extent the
panel may have suggested that a religious discrimination claim
might be twice subjected to an analysis aimed at determining the
level of scrutiny to be applied — once under the Free Exercise
Clause and again as a freestanding claim under the Equal Protection
Clause — that implication must be abandoned. Davey unequivocally
rejected such an approach on the ground that the free exercise
analysis definitively answers the question whether the challenged
state action impermissibly infringes upon the fundamental right to
religion. See Davey, 124 S. Ct. at 1312 n.3. Thus, an equal
-21-
n.14 (explaining that once a law is found to be valid with respect
to the free exercise right, there is "no occasion to apply to the
challenged classification a standard of scrutiny stricter than the
traditional rational-basis test" in addressing an equal protection
claim). Accordingly, we inquire whether intervening Supreme Court
precedent alters the panel's conclusion in Strout that section
2951(2) marks no free exercise violation.
In Strout, the panel held that section 2951(2) imposes no
substantial burden on religious beliefs or practices — and
therefore does not implicate the Free Exercise Clause — because it
does not prohibit attendance at a religious school or otherwise
prevent parents from choosing religious education for their
children.5 Strout, 178 F.3d at 65. Far from undermining that
analysis, Davey reinforces it. Indeed, Davey confirms that the
Free Exercise Clause's protection of religious beliefs and
practices from direct government encroachment does not translate
into an affirmative requirement that public entities fund religious
protection claim that challenges a law found not to violate the
Free Exercise Clause gives rise only to rational basis review. See
id.
5
We add that the statute does not exclude residents of Minot
from participation in the tuition program on the basis of religion;
all school-aged residents are equally eligible to apply for the
benefit that the program extends — a free secular education. Any
shift in the decisional calculus for parents who must decide
whether to take advantage of that benefit or pay to send their
children to a school that provides a religious education is a
burden of the sort permitted in Davey, 124 S. Ct. at 1315.
-22-
activity simply because they choose to fund the secular equivalents
of such activity. See Davey, 124 S. Ct. at 1313. Consequently,
the appellants' effort to characterize Maine's decision not to
deploy limited tuition dollars toward the funding of religious
education as an impermissible burden on their prerogative to send
their children to Catholic school is futile. The fact that the
state cannot interfere with a parent's fundamental right to choose
religious education for his or her child does not mean that the
state must fund that choice. Cf. Maher v. Roe, 432 U.S. 464, 475-
77 (1977) (explaining that the fundamental right to abortion does
not entail a companion right to a state-financed abortion).
The appellants endeavor to cabin Davey and restrict its
teachings to the context of funding instruction for those training
to enter religious ministries. Their attempt is unpersuasive. We
find no authority that suggests that the "room for play in the
joints" identified by the Davey Court, 124 S. Ct. at 1311, is
applicable to certain education funding decisions but not others.
We read Davey more broadly: the decision there recognized that
state entities, in choosing how to provide education, may act upon
their legitimate concerns about excessive entanglement with
religion, even though the Establishment Clause may not require them
to do so.
In addition to holding that section 2951(2) imposes no
constitutionally impermissible burden on religion, the Strout panel
-23-
found no indication that substantial animus against religion had
motivated the passage of that law. See Strout, 178 F.3d at 65.
Despite this finding, the appellants, relying on Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993),
resurrect the claim that section 2951(2) is presumptively
unconstitutional because it lacks religious neutrality on its face.
According to this thesis, the fact that the statute expressly
excludes sectarian institutions as potential recipients of
education funds necessarily indicates an animus against religion.
The decision in Lukumi cannot bear the weight that the
appellants pile upon it. There, the Court invalidated a local
ordinance that made it a crime to engage in certain kinds of animal
slaughter because it found overwhelming evidence that animus
against the Santeria religion had motivated the ordinance's
passage. See id. at 535, 546. There is not a shred of evidence
that any comparable animus fueled the enactment of the challenged
Maine statute.
The Davey Court catalogued the principal factors to be
considered in determining whether a particular law is motivated by
religious animus. To determine whether any implication that might
be drawn from a state's decision not to fund a particular activity
constitutes impermissible animus, an inquiring court must examine
whether the state action in question imposes any civil or criminal
sanction on religious practice, denies participation in the
-24-
political affairs of the community, or requires individuals to
choose between religious beliefs and government benefits. See
Davey, 124 S. Ct. at 1312-13. To the extent that these factors
articulate a test for smoking out an anti-religious animus, the
statute here passes that test with flying colors. Maine's decision
not to extend tuition funding to religious schools does not
threaten any civil or criminal penalty. By the same token, it does
not in any way inhibit political participation. Finally, it does
not require residents to forgo religious convictions in order to
receive the benefit offered by the state — a secular education.
If more were needed — and we doubt that it is — Davey
recognized that states are not required to go to the brink of what
the Establishment Clause permits. Id. at 1311-12. As part of its
formulation of this doctrine, the Davey Court confirmed the
legitimacy of extra-constitutional Establishment Clause concerns.
See id. Given these acknowledgments, it would be illogical to
impose upon government entities a presumption of hostility whenever
they take into account plausible entanglement concerns in making
decisions in areas that fall within the figurative space between
the Religion Clauses. Just as the Davey Court found that the
scholarship program at issue there was not inherently suspect
simply because "there [was] no doubt that the State could,
consistent with the Federal Constitution, permit [scholarship
recipients] to pursue a degree in devotional theology," id., the
-25-
mere fact that a hypothetical program in which Maine extended
tuition funding to parochial schools might comport with the
Establishment Clause would not support a presumption that religious
hostility motivated its decision not to adopt such a scheme.
In sum, recent Supreme Court jurisprudence reinforces
rather than undermines Strout's conclusion that section 2951(2)
perpetrates no free exercise violation. That reinforced conclusion
shortens the road that we must travel. Having determined that the
appellants' free exercise rights are not implicated by section
2951(2), we have no occasion to ponder whether Maine's
Establishment Clause defense constitutes a compelling interest that
justifies the challenged restriction. This, in turn, renders it
unnecessary to construct and construe a hypothetical tuition plan
based on the premise that Maine would repeal section 2951(2) but
leave intact all other relevant provisions of the statutory scheme.
It follows inexorably that we must apply rational basis
scrutiny to the lines that the Maine statute actually draws. See
Davey, 124 S. Ct. at 1312 n.3. That means that the appellants bear
the burden of demonstrating that there exists no fairly conceivable
set of facts that could ground a rational relationship between the
challenged classification and the government's legitimate goals.
Kittery Motorcycle, Inc. v. Rowe, 320 F.3d 42, 47 (1st Cir. 2003);
Montalvo-Huertas, v. Rivera-Cruz, 885 F.2d 971, 978-79 (1st Cir.
1989). Like any other challenger confronting rational basis
-26-
review, they must rule out every plausible rationale that might
support the law at issue. Heller v. Doe, 509 U.S. 312, 320 (1993);
Boivin v. Black, 225 F.3d 36, 44 (1st Cir. 2000).
Under the best of circumstances, this is a steep uphill
climb for a plaintiff. The appellants have declined to engage in
it. At oral argument in this court, they conceded that if the
rational basis test applies, their equal protection claim fails.
This concession is understandable: the 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 (especially those pertaining to admission,
religious tolerance, and participation in religious activities).
In all events, we accept the appellants' concession at face value
and hold that their equal protection challenge to section 2951(2)
fails as a matter of law.
We need not tarry in addressing appellants' additional
contention that section 2951(2) violates the fundamental right to
speech because it discriminates on the basis of religious
viewpoint. The statute at issue here does not implicate the
-27-
appellants' speech rights at all. As the Supreme Court made clear
in Davey, state programs to fund general tuition costs are not fora
for speech. Davey, 124 S. Ct. at 1312 n.3. The Maine education
plan 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.
Consequently, cases dealing with speech fora — such as Rosenberger
v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995), relied
upon by the appellants — are not relevant. See Davey, 124 S. Ct.
1312 n.3.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we conclude that the district court did not err in granting the
appellees' motion for summary judgment.
Affirmed.
-28-