James J. Kilpatrick

Verily, verily, remarked the Preacher, of the bringing of First Amendment cases there shall be no end. The venerable Ecclesiastes thus provided a text for an important case now pending in the Supreme Court on a petition for review.

The case is Kevin and Julia Anderson v. Durham School Department. It invites the high court to embark upon one more exploration of two of the murkier clauses of the Constitution. One clause forbids Congress (and by extension, the state of Maine) from making any law "respecting an establishment of religion." The other appears to forbid Maine from denying the Andersons' teenagers the equal protection of its laws.

The facts of the case take us back more than a hundred years, to the time in the 1880s when the only high schools in many counties in Maine were private high schools. A tuitioning system developed. Towns and counties that had no public high school of their own paid the tuition for their teenagers to attend non-public schools somewhere else. Many of the non-public schools were church-related schools, but there were fewer constitutional lawyers then and nobody seemed to mind.

Over the years, the facts greatly changed. Public high schools blossomed. The need for tuition grants declined. Constitutional law changed also. Trial courts weighed the legality of marble monuments to the Ten Commandments. The Supremes pondered the propriety of Jesus and Mary in public parks at Christmas. In 1980, Maine's attorney general issued a formal opinion warning that the use of public funds to pay tuition at private sectarian schools probably would be held unconstitutional. The state legislature responded by adopting an act limiting tuition grants to non-sectarian schools.

It was a near-fatal blow. Facing the loss of tuition from 40 percent of its students, the Catholic high school in Bangor was forced to close its doors. By 2000, only 211 students statewide were still receiving grants to cover tuition at sectarian schools. Almost all of them were at St. Dominic's regional high school in Auburn.

In the Portland area, affected parents banded together in a court challenge under both clauses of the Constitution. The Maine Civil Liberties Union naturally intervened in support of the law. It is what civil libertarians do. The parents lost in the Cumberland County trial court and lost again this past April through a 6-1 decision in Maine's Supreme Judicial Court. Now the parties wait to learn if the high court will hear the parents' appeal.

James J. Kilpatrick

James J. Kilpatrick has been reporter, editor, columnist, commentator, and briefly an adjunct professor of journalism.

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