My colleagues and I part company, however, in our analysis of plaintiffs' establishment clause and equal protection clause claims. The Maine tuition statute was narrowed in 1981 to exclude religiously-affiliated schools in response to a decision of the Maine Attorney General concluding that the inclusion of religiously-affiliated schools in Maine's tuition program violated the establishment clause of the federal Constitution.
See Bagley, et al. v. Raymond School Department, 728 A.2d 127 (Me.1999). Last month, the Maine Supreme Judicial Court upheld the continued constitutionality of the exclusion of sectarian schools, holding that to fund them would violate the establishment clause. My colleagues apparently believe, as did the Maine court, that since the Maine legislature excluded sectarian schools because of establishment clause concerns, the latter must be addressed by us: the Maine court, indeed, suggested that if allowing tuition benefits to the sectarian schools would
not violate the establishment clause, then denying such benefits would violate the equal protection clause, as denial would not then withstand even the minimal, “rational basis,” scrutiny under the Constitution's equal protection clause.
In such event, plaintiffs would have succeeded in demonstrating that the current statute is unconstitutional, being violative of the equal protection clause.