dissenting.
[¶ 73] Although I have little quarrel with much of the Court’s analysis of current Supreme Court case' law as it relates to the constitutionality of Maine’s public and private school tuition program, I disagree with its final conclusion that the program is constitutional. In my view, the program, as presently constituted, violates the rights of the parents guaranteed by the Equal Protection Clauses of the federal and state constitutions.37 Accordingly, I respectfully dissent.
[¶ 74] Applying to towns without their own public school system, 20-A M.R.S.A. § 5204 allows parents to choose the schools their children will attend, providing for the payment of tuition to private as well as public schools. Title 20-A M.R.S.A. § 2951(2), however, excludes sectarian schools from the choices available to the parents solely because of religious affiliation. See 20-A M.R.S.A. § 2951(2). Thus, the program is not neutral toward, but rather discriminates against, religion.
[¶ 75] The Equal Protection Clauses38 prohibit disparate treatment of similarly situated persons. See Nugent v. Town of Camden, *1481998 ME 92, ¶ 15, 710 A.2d 245, 249 (quoting Wellman v. Department of Human Servs., 574 A.2d 879, 883 (Me.1990) (“The prohibition against denial of equal protection of the law to any person is implicated only when action by the state results in treatment of that person [that is] different than that given similarly situated individuals.”)). The tuition program clearly results in disparate treatment. In towns without a public school system, parents who desire to send their children to sectarian private schools are treated differently from parents who choose nonreligious private schools. Tuition is paid only for those private schools that are nonsectarian.
[¶ 76] Despite the statute’s blatant discrimination against religion, the Court finds no constitutional violation because, the Court concludes, making religious schools eligible for the tuition program would itself violate the Establishment Clause of the First Amendment to the United States Constitution.
[¶ 77] The Court concludes that including religious schools in the tuition program, as it is presently constituted, would probably result in noncompliance -with Establishment Clause law. This is so because the tuition is paid directly to the schools and is substantial in amount, covering nearly the entire costs of the schools’ programs. Moreover, the program, as presently designed, places few restrictions on the use of the money. The tuition could be used to benefit the religious as well as the secular educational aspects of the school. See Columbia Union College v. Clarke, 159 F.3d 151, 162 (4th Cir.1998).
[¶ 78] In my view, however, the analysis cannot end there. The Establishment Clause is not the only constitutional provision implicated in this challenge to Maine’s education tuition statute. The parents also allege a violation of their right to equal protection of the law.
[¶ 79] Because the disparate treatment mandated by the statute is based on religion, implicating the most fundamental of the parents’ constitutional rights, we must subject the statute to a strict scrutiny analysis. See School Admin. Dist. No. 1, 659 A.2d at 857; Choroszy v. Tso, 647 A.2d 803, 808 (Me.1994). The burden of justifying the discrimination is on the defendants. First, they must demonstrate that the classification excluding religious schools is justified by a compelling governmental interest. Second, they must show that the means chosen by the State to carry out the purpose of the program is narrowly tailored to the achievement of that goal. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986).
[¶ 80] The stated goal of the tuition program is laudable. It gives parents in towns without public schools a wide choice of schools, public and private, for their children to attend, and it does so without running afoul of the Establishment Clause.39 The means chosen by the State to achieve its goal, however, must be narrowly tailored to the accomplishment of that objective.40 See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (a race-based classification necessary to further a compelling government interest is “within constitutional constraints if it satisfies the narrowly tailored test ... set out in previous cases”). To determine whether a classification is “narrowly tailored,” courts must consider “whether lawful alternative and less restrictive means could have been used.” Wygant, 476 U.S. at 280 n. 6, 106 S.Ct. 1842 (citing Ely, The Constitutionality of Reverse Discrimination, 41 U. Chi. L. Rev. 723, 727, n. 26 (1974) (classification must “fit with greater precision than any alternative means”)).41 “Fundamentally, *149narrow tailoring analysis asks whether á program is overinclusive or underinclusive to serve the purposes of the specific compelling interest on which the program is based.” Wessmann v. Gittens, 160 F.3d 790, 828 (1st Cir.1998) (Lipez, J., dissenting). We must therefore ask if the complete and total exclusion of religious schools is necessary to accomplish the goal of the tuition program? See Wygant, 476 U.S. at 280, 106 S.Ct. 1842 (describing the means chosen by a State to accomplish its purpose under the strict scrutiny test). In my view, there is no need to totally exclude religious schools from the program in order to conform with the Establishment Clause.
[¶ 81] As the Court notes, in recent years, the Supreme Court has become less hostile to legislative attempts to provide aid to parents who choose to educate their children in religious schools. Recent cases demonstrate that aid programs that treat religion in a neutral fashion have been looked on favorably by both state courts and the Supreme Court. See Kotterman v. Killian, 193 Ariz. 273, 972 P.2d 606 (1999) (citing Supreme Court cases). See also Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997); Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993); Witters v. Washington Dept. of Serv. for the Blind, 474 U.S. 481, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986); Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983). These cases reflect a change from what was perceived to be a hostility toward religion to a benign neutrality.42
[¶ 82] In Agostini, the Supreme Court reiterated that the issue in Establishment Clause cases is “whether the government acted with the purpose of advancing or inhibiting religion ... [and] whether the aid has the effect of advancing or inhibiting religion.” 521 U.S. at 222-23, 117 S.Ct. 1997. The Supreme Court, however, acknowledged that it has “departed from the rule ... that all government aid that directly aids the educational function of religious schools is invalid.” Id. at 225, 117 S.Ct. 1997.
[¶ 83] Several states have recently enacted programs to expand educational choices for parents. In Ohio, scholarships are provided to parents to send their children to private schools, including religious schools. See Simmons-Harris v. Goff, Nos. 96APEO8-982, 96APE08-991, 1997 WL 217583 at *1 (Ohio Ct.App., May 1, 1997). In Wisconsin, state issued tuition vouchers allow low income parents to send their children to private schools, including religious schools. See Jackson v. Benson, 218 Wis.2d 835, 578 N.W.2d 602, 607-09 (1998), cert. denied, — U.S. —, 119 S.Ct. 466, 142 L.Ed.2d 419 (1998). And in Arizona, persons donating to school tuition organizations are allowed a state tax credit of up to $500. See Kotterman v. Killian, 972 P.2d 606, 609-10 (Ariz.1999).
[¶ 84] In my view, the recent evolution of Establishment Clause jurisprudence and the programs being enacted in several states make it clear that the total exclusion of religious schools from a tuition program providing aid to parents of children attending private as well as public schools is not essential. Establishment Clause violations may be avoided by a tuition program that does not entirely exclude religious schools, but provides more limited tuition with reasonable restrictions conditioning the use of that aid. In Jackson v. Benson, for example, the Wisconsin Supreme Court found no Establishment Clause violation in a tuition voucher program that provided substantial monetary aid to religious schools without restriction on how the aid was used because the program: selects its beneficiaries based on random, *150nonreligious criteria; provides an “opt-out” provision that prevents private schools from requiring students to participate in religious activities; sends the economic aid to the religious school in the form of checks that must be endorsed by the parents; and limits the amount of tuition subsidy to the lesser of the Milwaukee Public School per student state aid or the private school’s “operating and debt service cost per pupil.” 578 N.W.2d at 609.
[¶ 85] A tuition program with similar or greater restrictions and conditions could be fashioned within the framework of the current statute with very little effort on the part of the State. Tuition in less substantial amounts could be authorized to benefit parents of children in religious schools. The tuition aid could be directed through the parents to avoid restrictions on direct aid and the State could require participating schools to accept an “opt-out” provision. In addition to the restrictions set forth in the Wisconsin program, the State could adopt reasonable conditions and restrictions on the use of the State aid, insuring that the moneys would not be used to directly subsidize the religious functions of the schools, avoiding both direct aid of religion and excessive entanglement of the State in religion. See generally Mueller, 463 U.S. at 396-403, 103 S.Ct. 3062.
[¶ 86] Although the legislature need not offer any aid to parents who choose private schools for their children, if such aid is provided, the Equal Protection Clause prohibits discrimination based on religion in a program providing such aid unless the discrimination is absolutely necessary to avoid Establishment Clause violations. In my view, the defendants cannot rely on the Establishment Clause to justify the present tuition program that blatantly discriminates on the basis of religion, when a more narrowly tailored tuition program could be created that would lessen the discrimination based on religion, while still complying with the Establishment Clause. The Establishment Clause prevents the government from establishing a church, passing laws “which aid one religion, aid all religions, or prefer one religion over another,” or punishing individuals for professing particular religious beliefs. Everson v. Board of Educ., 330 U.S. 1, 15-16, 67 S.Ct. 504, 91 L.Ed. 711 (1947). It was not intended to provide States with a blanket justification for discriminating against religion.
[¶ 87] I would vacate the judgment of the Superior Court and remand to that court for further proceedings.
. The United States Constitution prevents any state from denying "to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend, XIV.
The Maine Constitution provides that "[n]o person shall ... be denied the equal protection of the laws_” Me. Const. art. 1 § 6-A.
. State and federal equal protection guarantees are co-extensive. See School Admin. Dist. No. 1 v. Commissioner of Educ., 659 A.2d 854, 857 (Me.1995).
.School choice programs have great potential to improve our education system. See James A. Peyser, Symposium: Issues in Education Law and Policy — School Choice: When, Not If, 35 B.C. L. Rev. 619, 619-621 (1994). See generally Mark J. Beutler, Public Funding of Sectarian Education: Establishment and Free Exercise Clause Implications, 2 Geo. Mason Indep. L. Rev. 7 (1993).
. There is no indication in equal protection jurisprudence that the strict scrutiny analysis for religious-based classifications differs from the analysis of race-based classifications.
. See also United States v. Paradise, 480 U.S. 149, 171, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987) (considering "the necessity for the relief and the efficacy of alternative remedies" when determin*149ing whether a classification was narrowly tailored).
. In his dissent in Aguilar v. Felton, 473 U.S. 402, 105 S.Ct. 3232, 87 L.Ed.2d 290 (1985), a case since overruled in Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997), Chief Justice Berger characterized the Establishment Clause test for separation of church and state used in Aguilar as unacceptable. "Rather than showing the neutrality the Court boasts of ... [the test] exhibits nothing less than hostility toward religion and the children who attend church-sponsored schools.” Aguilar, 473 U.S. at 420, 105 S.Ct. 3232 (Burger, C.J., dissenting).