Carson v. Makin

United States Court of Appeals
For the First Circuit

No. 19-1746

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.

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

* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
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 Education Law Center on brief for Public Funds Public Schools,
amicus curiae.
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 Constitution

instructs the state legislature "to require[] the several towns to

make suitable provision, at their own expense, for the support and

maintenance of public schools." Me. Const. art. VIII, pt. 1, § 1.

In response, the legislature passed a statute that obliges it to

"enact the laws that are necessary to assure that all school

administrative units make suitable provisions for the support and

maintenance of the public schools" so that every school-age child

in the state has "an opportunity to receive the benefits of a free

public education." Me. Stat. tit. 20–A, § 2(1).

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, id. §§ 2701-2702,

5204(3), or (2) "pay the tuition . . . at the public school or the

approved private school of the parent's choice at which the student

[from their SAU] is accepted," id. § 5204(4).

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

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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

Me. Stat. tit. 20-A, § 2951(2). The plaintiffs claim that this

"nonsectarian" requirement infringes various of their federal

constitutional rights, including their First Amendment right to

the free exercise of religion, by barring them from using their

SAUs' tuition assistance to send their children to religious

schools.

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.

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 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 § 2951(2)'s "nonsectarian"

requirement -- which the complaint refers to as the "sectarian

exclusion" -- violates the federal Constitution both on its face

and as applied because it "denies sectarian options to tuition-

eligible students and their parents." The complaint asserts claims

pursuant to 42 U.S.C. § 1983 based on alleged violations of the

United States Constitution under the Free Exercise, Establishment,

and Freedom of Speech Clauses of the First Amendment, as they have

been incorporated by the Fourteenth Amendment's Due Process

Clause, and under that Amendment's Equal Protection Clause. The

complaint requests declaratory and injunctive relief. When filed,

it named as the defendant Robert G. Hasson, Jr., in his official

capacity as Commissioner.

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 B.

The tuition assistance program works as follows.

Parents first select the school they wish their child to attend.

See Me. Stat. tit. 20-A, § 5204(4). If they select a private

school, and it has been "approved" by the Department under § 5204,

the parents' SAU must pay the child's tuition costs up to the legal

tuition rate established in § 5806 by making the tuition payments

directly to the school, see id. §§ 2951, 5204(4), 5806(2).

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. Id.

§§ 2901, 2951, 5001-A. To meet those requirements, the school

must be either "accredited by a New England association of schools

and colleges" or "approv[ed] for attendance purposes" by the

Department, which depends in part on whether the school can show

that it meets basic curricular requirements. Id. §§ 2901-2902.

In addition, a private school must be "nonsectarian in accordance

with the First Amendment" and comply with certain separate

reporting and auditing requirements. Id. § 2951(2), (5).

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

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children to and the way the "nonsectarian" requirement prevents

them from receiving tuition assistance to do so.

The Carsons and the Gillises send their respective

children to Bangor Christian School ("BCS"), which is a private,

nonprofit school in Maine. They selected BCS "because the school's

worldview aligns with their sincerely held religious beliefs and

because of the school's high academic standards." The Department

classifies BCS, which is fully accredited by the New England

Association of Schools and Colleges, as a "private school approved

for attendance purposes."

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." Id. § 2901(1), (2)(a).

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 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 Fed. R. Civ. P. 12(b)(1); Fed. R. Civ. P. 12(b)(6). For these

reasons, the answer contended that the complaint had to be

dismissed.

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

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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 world

view." 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, Me. Stat. tit. 5, §§ 4553(4), 4553(10)(G), 4573-

A(2), and thereby require them to change their hiring policies.

At the same time, the record makes clear that, but for the

"nonsectarian" requirement, they would "consider" accepting

tuition payments from an SAU if doing so would not force them to

make such a change.

E.

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

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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

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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

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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 challenges, the

District Court disagreed, id. at 211-12.

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[,]

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[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

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Rule 28(j) letters that set forth their view of how Espinoza

affected our decision here. Fed. R. App. P. 28(j). The plaintiffs

contend that Espinoza accords with their contention that the

"nonsectarian" requirement violates the Free Exercise Clause. The

Commissioner contends that, even accounting for Espinoza, the

District Court's ruling rejecting the plaintiffs' challenge to

that requirement must be affirmed.

II.

We start with the Commissioner's challenge to the

plaintiffs' standing under Article III of the Constitution. See

Allen v. Wright, 468 U.S. 737, 750 (1984). To establish Article

III standing, "a plaintiff must show (1) it has suffered an 'injury

in fact' that is (a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical; (2) the injury is fairly

traceable to the challenged action of the defendant; and (3) it is

likely, as opposed to merely speculative, that the injury will be

redressed by a favorable decision." Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000).

Our review is de novo. Katz v. Pershing, LLC, 672 F.3d 64, 70

(1st Cir. 2012).

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

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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

§ 2951(2) "imposes restrictions on that approval, the parents'

allegations of injury in fact to their interest in securing tuition

funding provides a satisfactory predicate for standing." Id. And,

in doing so, we relied on Bennett v. Spear, 520 U.S. 154 (1997),

which we read to establish that the "harm 'produced by

determinative or coercive effect' upon a third party satisfies the

injury in fact requirement when the harm is 'fairly traceable' to

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that effect." Eulitt, 386 F.3d at 353 (quoting Bennett, 520 U.S.

at 168-69).

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

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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 would qualify for

public funding, 386 F.3d at 353, even though, if the "nonsectarian"

requirement were struck down, BCS and TA might not participate in

the tuition assistance program. After all, Eulitt held that the

plaintiffs there had suffered an injury in fact based on a similar

lost opportunity, even though "it [was] entirely possible that the

school [that they wished to send their children to] . . . is not

interested in participating in Maine's tuition program and thereby

subjecting itself to any number of concomitant state regulations."

Id. at 352. Moreover, Eulitt makes clear that this lost

opportunity -- and thus, this injury in fact -- is fairly traceable

to the "nonsectarian" requirement, even if it is not likely that

either school will participate in the tuition assistance program.

See id. at 352-53.

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

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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 § 2951(2)'s "nonsectarian"

requirement would restore the plaintiffs' now non-existent

opportunity to find religious education for their children that

qualifies for public funding. And that is so even though the

continued existence of that opportunity would depend on choices

that BCS and TA might make in the future about whether to

participate in the tuition assistance program. For, as the case

comes to us, neither school has yet extinguished that opportunity

by choosing to disclaim a willingness to consider participating.

Thus, it is not merely likely that the relief that the plaintiffs

seek would redress their injury, it is certain that it would.

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

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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), shares those twin

features of this case and points against the Commissioner's

position as to redressability. There, the Supreme Court held that

the plaintiff, an organization that represented private

contractors, had standing to challenge a city ordinance's minority

set-aside provision on federal equal protection grounds. Id. at

658-59, 669. In doing so, the Court did not require that

organization to show that the city's contracting officers were

likely to exercise their discretion to contract with any of those

private contractors if the challenged provision were struck down.

Rather, it held that it was enough that the organization had

alleged that the set-aside provision denied the contractors the

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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,

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starting with the plaintiffs' challenge under the Free Exercise

Clause.

III.

The plaintiffs contend that the "nonsectarian"

requirement discriminates against them based on their religion and

thereby violates the Free Exercise Clause. We first explain why,

given Trinity Lutheran and Espinoza, Eulitt does not dictate our

resolution of this challenge. We then explain why, even

considering that challenge afresh in the light of those two new

precedents, the plaintiffs' free exercise challenge lacks merit.

Our review is de novo. See Auburn Police Union v. Carpenter, 8

F.3d 886, 892 (1st Cir. 1993).

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

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subsequently announced controlling authority, such as a decision

of the Supreme Court, a decision of the en banc court, or a

statutory overruling." Eulitt, 386 F.3d at 349. The other exists

"when recent Supreme Court precedent calls into legitimate

question a prior opinion of an inferior court." Id. at 350. "In

that context," we have explained, "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." Id. ("[Where] significant developments in the

pertinent jurisprudence . . . shed new light on the case law . . .

[it is] incumbent upon us to reject a rote application of stare

decisis . . . and to undertake a fresh analysis.").

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 Free Exercise Clause because it

effected at most a minimal burden on religious exercise (given

that it merely restricted the availability of a subsidy) and its

enactment was not motivated by animus against religion. Id. at

354-55 (citing Strout, 178 F.3d at 65). Eulitt also pointed out

- 23 -
that Strout emphasized Maine's interest in avoiding a violation of

the Establishment Clause. Id. at 350 (citing Strout, 178 F.3d at

64).

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 Establishment Clause

challenge to a state voucher program that made tuition assistance

available to parents to send their children to religious private

schools. 536 U.S. at 643-44, 662-63.

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 Establishment Clause issue. 386 F.3d at 349 & n.1,

354. But, Eulitt concluded that those two then-recent Supreme

Court precedents triggered the second exception to the law-of-the-

circuit doctrine, because they "provide[d] [a] more focused

direction than was available to the Strout panel." Id. at 350.

For that reason, Eulitt held that it was "incumbent upon us to

reject a rote application of stare decisis here and to undertake

a fresh analysis." Id.

- 24 -
 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 § 2951(2) is based

solely on its religious "status" or instead on the religious use

that it would make of the tuition assistance payments. See id. at

354-56. In both Trinity Lutheran and Espinoza, however, it was of

central importance whether the restriction at issue was based

solely on the aid recipient's religious status.

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

- 25 -
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

- 26 -
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

1 The Court's analysis resonates with unconstitutional
conditions doctrine in the First Amendment area more generally.
See, e.g., Rust v. Sullivan, 500 U.S. 173, 197-99 (1991) ("[O]ur
'unconstitutional conditions' cases involve situations in which
the Government has placed a condition on the recipient of the
subsidy rather than on a particular program or service, thus
effectively prohibiting the recipient from engaging in the
protected conduct outside the scope of the federally funded
program." (emphasis in original)); Agency for Int'l Dev. v. All.
for Open Soc'y Int'l, Inc. (AOSI I), 570 U.S. 205, 218 (2013)
(finding the funding requirement at issue to violate the First
Amendment because it "goes beyond defining the limits of the

- 27 -
 Thus, Espinoza held that the solely status-based

religious discrimination involved there triggered strict scrutiny,

even as it expressly left unaddressed the level of scrutiny

applicable to a use-based restriction. Id. at 2257. For that

reason, in the wake of Espinoza, the use/status distinction is

clearly potentially relevant to the determination of the level of

scrutiny that must be applied here. Yet, Eulitt did not give that

distinction the "more focused" attention, 386 F.3d at 350, that we

now know that it warrants.

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 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 activity simply

federally funded program to defining the recipient"); FCC v. League
of Women Voters, 468 U.S. 364, 399-400 (1984) (similar).

- 28 -
because they choose to fund the secular equivalents of such

activity." Eulitt, 386 F.3d at 354. This "room for play in the

joints," Eulitt then held, extended beyond the clerical training

considered in Locke, as it understood that case to stand "more

broadly" for the proposition 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." Id. at 355

(quoting Locke, 540 U.S. at 718). Therefore, Eulitt relied on

Locke to conclude that even a restriction that "lacks religious

neutrality on its face" does not necessarily pose free exercise

concerns unless the decision not to fund constitutes impermissible

animus. Id.

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.

140 S. Ct. 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

- 29 -
on our assessment of the level of scrutiny that applies to the

"nonsectarian" requirement that § 2951(2) sets forth.

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 ones at

issue in Espinoza and Trinity Lutheran. "Maine's tuition program,"

the Commissioner says, "is not: a 'voucher' or 'school choice'

program where parents are given the opportunity to select a school

other than the public school that their student would otherwise

attend." Rather, Maine uses the tuition benefit to "ensur[e]"

that the state-paid-for education at private schools in those

districts is "roughly equivalent to the education [students] would

receive in public schools" but cannot obtain because it is not

otherwise offered.

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,

- 30 -
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

Establishment Clause does not require Maine to impose the

"nonsectarian" requirement on its tuition assistance program.2

For, as we will explain, the plaintiffs' free exercise challenge

fails even if we make that assumption, Trinity Lutheran and

Espinoza notwithstanding. To explain why, we first address the

plaintiffs' claim of religious discrimination based on Trinity

Lutheran and Espinoza. We then turn to the distinct variant of

their free exercise challenge in which they point to specific

statements in § 2951(2)'s legislative record that they contend

reflect religious animus -- a species of free exercise challenge,

2 As we noted in Eulitt, "[e]ven after Zelman and [Locke], 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," given that the Maine program is "substantially narrower"
than the school-choice program under scrutiny in Zelman because it
serves as a backstop for children who have no opportunity to attend
a public school. 386 F.3d at 349 & n.1. So, it is hardly clear
that there is no legitimate Establishment Clause concern
supporting the state's decision to impose the restriction.

- 31 -
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 educational options flows from,

and is inextricably intertwined with, their religious status."

They further contend that "[t]o deny them an otherwise available

benefit because they desire a religious education for their

children is to deny them that benefit based on their religious

status." Accordingly, they assert, the "nonsectarian" requirement

is like the restrictions on the subsidies at issue in Trinity

- 32 -
Lutheran and Espinoza, because it, too, necessarily penalizes

their religious exercise.

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

3
We recognize that, if the Commissioner were right that the
plaintiffs' free exercise challenge would fail even if the
determination of whether a school qualifies as "nonsectarian" is
based solely on its religious status, we could simply assume as
much in deciding the merits of the challenge. But, it is not our
practice to resolve hypothetical federal constitutional questions,
especially when doing so would result in a broader constitutional
ruling than the facts at hand require. See Ala. State Fed'n of
Lab. v. McAdory, 325 U.S. 450, 461 (1945).
4
The District Court did not itself directly engage with the
status- versus use-based distinction, but the parties have, and it
is one of law. We thus see no reason to prolong the litigation by
vacating and remanding for the District Court to assess the import
of the fact that the "nonsectarian" requirement is not based solely
on religious status. See Cutting v. City of Portland, 802 F.3d
79, 86 (1st Cir. 2015) (addressing a legal question in the first
instance "despite the fact that the District Court ha[d] not passed
on it"). We note as well that none of the parties has asked us to
remand in light of Espinoza or argued that, insofar as the
"nonsectarian" requirement is use based, it would not bar BCS or
TA from qualifying as "nonsectarian." Indeed, the record makes
clear that they would not so qualify, given what the record shows
about the way each would use the funds.

- 33 -
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

- 34 -
that "[t]he Montana Constitution discriminates based on religious

status just like the Missouri policy in Trinity Lutheran," as it

explained that the policy there "excluded organizations 'owned or

controlled by a church, sect, or other religious entity.'" Id.

(quoting Trinity Lutheran, 137 S. Ct. at 2017).

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

- 35 -
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 § 2951(2)

discriminate in that manner? We conclude that it does not,

because, as we will explain, § 2951(2) imposes a use-based

restriction.

Notably, in response to the plaintiffs' interrogatories,

Commissioner Hasson stated that the Department determines if a

school satisfies § 2951(2)'s "nonsectarian" requirement in the

following way:

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

- 36 -
 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 text of § 2951(2) contains nothing that expressly is

to the contrary, as it does not, by its terms, make control by or

affiliation with a religious institution determinative of a

school's eligibility to receive tuition assistance payments from

an SAU. Nor does the inclusion of the word "nonsectarian" in

§ 2951(2) in and of itself reveal that Maine must have intended to

impose a solely status- rather than use-based restriction in that

provision. In fact, in Espinoza the Court acknowledged that the

Montana Supreme Court understood the no-aid provision to "forbid[]

aid to any school that is 'sectarian,' 'religiously affiliated,'

or 'controlled in whole or in part by churches,'" but then focused,

- 37 -
in deeming that provision to be solely status based, on the bar

that it imposed on "aiding 'schools controlled by churches.'" 140

S. Ct. at 2256 (emphases added) (quoting Espinoza, 435 P.3d at

611-14); see also id. (describing the no-aid provision as being

similar to Trinity Lutheran's exclusion of "organizations 'owned

by or controlled by a church, sect, or other religious entity.'"

(quoting Trinity Lutheran, 137 S. Ct. at 2017)).

The inclusion of the trailing phrase "in accordance with

the First Amendment" in the text of § 2951(2) is also not at odds

with the use-based construction that the Commissioner and the

Attorney General of Maine put forth. If anything, in light of

Espinoza, that phrase accords with a reading of § 2951(2) that

would ensure the inquiry into whether a school is "nonsectarian"

does not turn solely on whether it is religiously affiliated or

controlled but depends instead on the sectarian nature of the

instruction that it will provide to tuition assistance

beneficiaries. See Nat'l Pharmacies, Inc. v. Feliciano-de-

Melecio, 221 F.3d 235, 241-42 (1st Cir. 2000) ("[F]ederal courts

are . . . instructed to render interpretations of state law by

using the same methods that the state court would use, . . .

including the principle that statutes should ordinarily be given

a constitutional interpretation where fairly possible."); Portland

Pipe Line Corp. v. Env't Improvement Comm'n, 307 A.2d 1, 15 (Me.

1973) ("[I]f . . . provisions of [an] Act are susceptible of a

- 38 -
reasonable interpretation which would satisfy constitutional

requirements . . . we are bound to adopt that interpretation.").

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 § 2951(2) "explicitly

excludes only those private schools with religious affiliations,"

728 A.2d at 137. But, that passage, in context, does not indicate

that the Maine Law Court -- prior to Trinity Lutheran and Espinoza

-- meant to take a position regarding the use/status distinction,

such that we may reject the contrary representation made to us by

Maine's Attorney General and the Commissioner. Cf. Forsyth County

v. Nationalist Movement, 505 U.S. 123, 131 (1992) ("In evaluating

respondent's facial challenge, we must consider the county's

authoritative constructions of the ordinance, including its own

implementation and interpretation of it."); Cutting v. City of

Portland, 802 F.3d 79, 84 (1st Cir. 2015) (recognizing that we

"may read a law in light of the limits set forth in a government's

'authoritative[] constru[ction]' of that law if doing so would

- 39 -
'render [that law] constitutional'" (alterations in original)

(quoting City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S.

750, 770 n.11 (1988))).

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

5 At oral argument, the United States suggested that some
evidence in the record raises a question as to whether the
Department applies the criteria for determining whether a school
is "nonsectarian" exactly how Commissioner Hasson described. But,
it did not make that argument in its brief to us, nor did the
plaintiffs themselves. See Piazza v. Aponte Roque, 909 F.2d 35,
37 (1st Cir. 1990) ("Except in extraordinary circumstances not
present here, a court of appeals will not consider an issue raised
for the first time at oral argument."). In any event, the
treatment identified does not concern either BCS or TA.

- 40 -
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

6For that reason, we need not and do not decide whether the
Commissioner is right that, under Espinoza, it would be permissible
to restrict funding here based solely on a school's religious
status due to the nature of Maine's tuition assistance program (as
it provides funding for only the rough equivalent of the public
school education that is not available in SAUs that operate no
public secondary school of their own), the state's assertedly
compelling interest in declining to fund discrimination based on
sexual orientation or gender identity, or, for that matter, some
other reason, see Locke, 540 U.S. at 718-19 (discussing the "play
in the joints" between the Establishment Clause and the Free
Exercise Clause (quoting Walz v. Tax Comm'n, 397 U.S. 664, 669
(1970))). Because no solely status-based restriction is in place,
no such question is before us.
7 The plaintiffs do not argue that the "nonsectarian"
requirement violates the Free Exercise Clause if it is subject

- 41 -
rely not on any controlling Supreme Court authority but on Justice

Gorsuch's concurrence in Trinity Lutheran, which Justice Thomas

joined and which Espinoza itself noted in explaining that "[s]ome

Members of the Court . . . have questioned whether there is a

meaningful distinction between discrimination based on use or

conduct and that based on status." 140 S. Ct. at 2257 (citing

Trinity Lutheran, 137 S. Ct at 2025 (Gorsuch, J., concurring)

(stating that he "harbor[s] doubts about the stability of such a

line" between "discriminat[ion] on the basis of religious status

and religious use")).8 We are not persuaded.

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 Free Exercise Clause "guarantees the free exercise of

religion, not just the right to inward belief (or status)" and

that "[g]enerally the government may not force people to choose

between participation in a public program and their right to free

only to rational basis review because it is use based. They do
argue in connection with their Equal Protection Clause challenge
that this restriction cannot survive even that more forgiving form
of review. To the extent the plaintiffs mean to press that same
contention in connection with their free exercise challenge, it
fails for the same reasons we give below for rejecting that
contention in addressing that challenge. See infra.
8 The United States, relying on this concurrence, emphasizes
that the line between religious use and religious status "may
sometimes be difficult to draw." But, the United States does not
assert that no such line may be drawn here.

- 42 -
exercise of religion." 137 S. Ct. at 2026 (Gorsuch, J.,

concurring) (second emphasis added). Therefore, the concurrence

argued, it should not "matter whether we describe that benefit,

say, as closed to Lutherans (status) or closed to people who do

Lutheran things (use)." Id.

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 Free Exercise Clause. Espinoza, 140 S. Ct. at 2277

(Gorsuch, J., concurring) (quoting Thomas, 450 U.S. at 718).

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

- 43 -
would violate the Free Exercise Clause, even though nominally that

restriction would target their religious conduct rather than their

religious status. But, this restriction is not like that, as it

limits the benefit to only those who would use it for nonsectarian

instruction. It thus does not target any religious activity apart

from what the benefit itself would be used to carry out.

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 it has made available through the tuition

assistance program. For, only by doing so can we determine

whether, given that baseline, the "nonsectarian" requirement

merely reflects Maine's refusal to subsidize religious exercise

(by excluding only those who are seeking a distinct benefit) or

instead penalizes religious exercise (by excluding those who seek

the very same benefit as everyone else solely based on the

religious things they do).

- 44 -
 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

- 45 -
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 Me. Stat. tit. 20-A, § 2901. But,

they are wrong to argue that it follows that either school for

that reason offers a type of educational instruction that is so

like what a public school provides that it is necessarily a good

substitute for a public school education. That Maine's public

schools cannot provide pervasively sectarian instruction

demonstrates that the benefit that Maine provides no more sets a

baseline that requires the state to subsidize sectarian

- 46 -
instruction than an SAU's funding of its own public secondary

school would set one that would require it to provide funding for

sectarian education as well.

To be sure, by making the free benefits of public

education available to children in SAUs that do not operate their

own public secondary schools, Maine makes tuition assistance

available to some students who might have chosen a private secular

education if they lived in an SAU with a public secondary school.9

But, Maine need not for that reason also sweep in those children

who would opt out of the public option in favor of a private

sectarian education no matter where they lived, precisely because

Maine has permissibly concluded that the benefit of a free public

education is tied to the secular nature of that type of

instruction. See Schempp, 374 U.S. at 226; W. Va. State Bd. of

Educ. v. Barnette, 319 U.S. 624, 637 (1943).10

9The plaintiffs make no argument that the tuition assistance
program could operate without including any private schools. Given
that Maine is "still largely rural" and that so many of its SAUs
do not operate public secondary schools, there is no reason to
think that this would be feasible. Maine has long relied on
private academies to fill gaps where public secondary school
education is not accessible. See Br. for Maine School Boards
Assoc. & Maine School Superintendents Assoc. at 5-9.
10For this reason, the state's interest in avoiding the
diversion of resources from its public education program is not
"underinclusive" in the way that Espinoza found Montana's asserted
interest in "ensuring that government support is not diverted to
private schools" to be, 140 S. Ct. at 2261. In addition, there is
a legitimate reason for the tuition assistance program in Maine to
include private secular schools, just as there is a legitimate
interest, aside from the general interest in protecting against

- 47 -
 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

the diversion of funds for public education, in Maine not paying
for sectarian education through that program. Given the way that
Maine has structured SAUs' options for extending the benefits of
free public education, tuition assistance to private secular
schools serves not to divert funds from the public education system
but rather to provide an alternative mechanism to extend the
benefits of that public education system to children in Maine who
otherwise would be denied them.

- 48 -
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 providing a substitute for the public

educational instruction that is not otherwise offered. As we put

it in Eulitt, "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." 386 F.3d at 355 (emphasis added).11

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

11
Once a state opens up the possibility that private schooling
in general may serve as a substitute for the instruction that a
public school provides, it may be that a private school's control
by or affiliation with a religious institution in and of itself
could not suffice to render its educational instruction an
inadequate substitute under the Free Exercise Clause, based on the
logic of Sherbert and Thomas. We do not address whether such a
solely status-based restriction in the context of a tuition
assistance program structured as Maine's is would raise that
concern, though, as we have here a restriction that targets only
the use of the tuition assistance for sectarian instruction itself.

- 49 -
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 Free Exercise Clause unless it mimics the restriction

in Locke. Espinoza certainly does not expressly set forth any

such rule. And here, the "nonsectarian" requirement operates not

as a restriction on the provision of general aid to private schools

12
Trinity Lutheran also noted that Locke "went 'a long way
toward including religion in its benefits'" for the additional
reason that a student in the scholarship program could "use his
scholarship to pursue a secular degree at one institution while
studying devotional theology at another." 137 S. Ct. at 2023
(quoting Locke, 540 U.S. at 724).

- 50 -
but as part and parcel of Maine's means of providing the benefits

of a free public education to those who otherwise cannot obtain

them because such education is not otherwise available at all.

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 mean that

the state must fund that choice.").

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

- 51 -
residents of many SAUs, we do not see why the Free Exercise Clause

compels Maine either to forego relying on private schools to ensure

that its residents can obtain the benefits of a free public

education or to treat pervasively sectarian education as a

substitute for it. Cf. Espinoza, 140 S. Ct. at 2254 (recognizing

that there is "play in the joints" between the Religion Clauses

(quoting Trinity Lutheran, 137 S. Ct. at 2019)); Locke, 540 U.S.

at 719 ("This case involves that 'play in the joints . . . .'").

We turn, then, to the plaintiffs' other free exercise contention,

which concerns whether the "nonsectarian" requirement is the

product of religious animus.

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

- 52 -
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 § 2951(2). See Eulitt,

386 F.3d at 355 (finding that § 2951(2) "passes [Locke's] test"

"for smoking out an anti-religious animus" "with flying colors").

In fact, our conclusion that the provision bars only religious

uses within a program that is a substitute for a free, secular

public education reinforces that conclusion. See, e.g., Zorach v.

Clauson, 343 U.S. 306, 314 (1952) (accepting that "[g]overnment

may not . . . undertake religious instruction" in the course of

rejecting "a requirement that the government show a callous

indifference to religious groups"). No exception to the law-of-

the-circuit doctrine is appropriate here; Trinity Lutheran and

Espinoza do not "undermine[]" our treatment of the animus issue in

Eulitt nor do those opinions even "call[] into legitimate question"

our analysis. Eulitt, 386 F.3d at 349-50. Accordingly, these two

recent cases present no grounds to deviate from Eulitt when

considering animus.

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

- 53 -
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 Free Exercise Clause. We thus turn our attention

to the plaintiffs' other federal constitutional challenges.

IV.

First up is the plaintiffs' contention that the

"nonsectarian" requirement violates the Free Speech Clause of the

First Amendment. Reviewing de novo, see United States v. Floyd,

740 F.3d 22, 38 (1st Cir. 2014), we see no merit to it.

The barrier here is Eulitt. As we explained there,

Maine's tuition assistance program "deals with the provision of

- 54 -
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

13To the extent that the resolution of a free exercise claim
determines the level of scrutiny applied to the equal protection
challenge only insofar as the asserted equal protection violation
is rooted in the implication of a fundamental right, we note, as
we did in Eulitt, the "hopelessness of any effort to suggest that
those who choose to send their children to religious schools

- 55 -
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. To do so, they invoke

the Supreme Court's decision in Romer v. Evans, 517 U.S. 620

(1996), and the Ninth Circuit's decision in Christian Science

Reading Room Jointly Maintained v. City & County of San Francisco,

784 F.2d 1010 (9th Cir. 1986). But, neither case is on point.

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.

comprise a suspect class," 540 F.3d at 353 n.3; see also Johnson,
415 U.S. at 375 n.14.

- 56 -
 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 1010, 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":

- 57 -
 [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.2d 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 the

legislative history "could not have been a goal of the

legislation," Weinberger, 420 U.S. at 648 n.16. Thus, the

plaintiffs' equal protection challenge necessarily fails. See

Eulitt, 386 F.3d at 356 (explaining that under rational basis

scrutiny, "the appellants bear the burden of demonstrating that

- 58 -
there exists no fairly conceivable set of facts that could ground

a rational relationship between the challenged classification and

the government's legitimate goals").

VI.

That leaves only the plaintiffs' contention that the

Establishment Clause requires Maine to include sectarian schools

in the tuition benefit program. Our review is, again, de novo.

See Floyd, 740 F.3d at 38.

The plaintiffs assert that § 2951(2) violates the

Establishment Clause by excessively entangling the state with

religion, see Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971), as

it requires "government officials to engage in detailed inquiries

of private schools to determine the 'religiosity' of private

schools that seek approval for tuition purposes." Appellants' Br.

at 38-39.

The chief problem for the plaintiffs is that none of the

authority that they rely on indicates that the Establishment Clause

requires the extension of a benefit to include religious uses in

the absence of any finding of religious discrimination. In fact,

Strout noted that "[t]here is no relevant precedent for using [the

Establishment Clause's] negative prohibition [against making a law

respecting the establishment of any religion] as a basis for

extending the right of a religiously affiliated group to secure

- 59 -
state subsidies," 178 F.3d at 64, and the plaintiffs identify no

supportive post-Strout authority.

The plaintiffs do cast post-Strout cases like Zelman as

if they stand for the proposition that the Establishment Clause

demands such inclusion. But, those cases merely rejected attempts

to use that Clause as a sword. See, e.g., Zelman, 536 U.S. at

649-55. They do not support the claim that a requirement that

otherwise permissibly limits the scope of a benefit to secular

uses gives rise to an Establishment Clause violation just because

it triggers an inquiry into whether a proposed use of that benefit

would be secular. Cf. Lukumi, 508 U.S. at 532 (holding that,

although "Establishment Clause cases . . . have often stated the

principle that the First Amendment forbids an official purpose to

disapprove of a particular religion or of religion in general," it

is the "Free Exercise Clause [that] is dispositive" when what is

at issue is not a "governmental effort[] to benefit religion or

particular religions" but rather "an attempt to disfavor . . .

religion").

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."

- 60 -
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 Establishment

Clause violation in this context, if any could. See Santa Fe

Indep. Sch. Dist. v. Doe, 530 U.S. 290, 314 (2000) (concluding

that it was proper to consider "whether the statute has an

unconstitutional purpose," in addition to focusing on the

application of the statute, in "Establishment Clause cases

involving facial challenges"); Tilton v. Richardson, 403 U.S. 672,

687 (1971) (noting that entanglement concerns are lessened where

there is less risk that "government aid will in fact serve to

support religious activities"). Nor, finally, do the plaintiffs

assert any entanglement concern as applied to them specifically,

which is no surprise as neither TA nor BCS has yet applied to be

"approved" to receive tuition assistance.

The plaintiffs do separately contend that the

"nonsectarian" requirement "establish[es] a 'religion of

secularism' in the sense of affirmatively opposing or showing

- 61 -
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 Free

Exercise Clause ensures that Mainers, like all Americans, are free

to opt for a religious education for their children if they wish.

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

- 62 -
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 Free Exercise Clause nor the Establishment Clause, nor any of

the other provisions of the federal Constitution that the

plaintiffs invoke. Rather, it permissibly satisfies a commitment,

rooted in its own founding charter, to pursue the wholly legitimate

end of ensuring the distribution of the benefits of a free public

education even to those who happen to live in places that cannot

provide it of their own accord.

The judgment of the District Court is affirmed.

- 63 -