Judith and Alan Gillis of Orrington, parents of Bangor Christian Schools junior Isabella Gillis at the school Aug. 28, 2018. The Gillis’ are one of three Maine families that are challenging the prohibition on using public money to pay tuition at religious schools after a recent U.S. Supreme Court decision. Credit: Gabor Degre

The American Civil Liberties Union, its Maine chapter and Americans United for Separation of Church and State on Tuesday filed a motion to intervene in a federal lawsuit that claims the denial of public funds to religious schools in Maine is unconstitutional.

“Maine’s state and federal courts have consistently held that Maine’s law is constitutional because taxpayers cannot be required to pay to teach children how to pray,” Zachary Heiden, legal director at the ACLU of Maine said in a press release. “We’ve helped defend this law four times already, and we hope to do so again.”

Three Maine families in Glenburn, Orrington and Palermo in August sued Robert G. Hasson Jr., commissioner of the Maine Department of Education in U.S. District Court in Bangor on behalf of their children.

[Bangor Christian students head back to school as plaintiffs in a lawsuit]

Those towns don’t have their own high schools, and the families argued in their complaint that Maine’s tuition law “violates the principle that the government must not discriminate against, or impose legal difficulties on, religious individuals or institutions simply because they are religious.”

All three families — David and Amy Carson of Glenburn, Alan and Judith Gillis of Orrington, Troy and Angela Nelson of Palermo and their children — are being represented by attorneys with the Institute for Justice in Mesa, Arizona, and the First Liberty Institute in Washington, D.C. The families’ challenge is based on a recent decision by the nation’s highest court.

“We have filed this case in light of the U.S. Supreme Court’s 2017 decision in Trinity Lutheran v. Comer,” Tim Keller, senior attorney at the Institute for Justice, said in August. “In that case, the Supreme Court held that the state of Missouri could not, consistent with the free exercise clause of the First Amendment to the U.S. Constitution, exclude a religious school from a grant program that reimbursed schools for resurfacing their playgrounds with recycled tires.”

The people named as proposed intervenors in the motion are Susan Marcus of Alna and James Torbert, and Theta Torbert of Whitefield. The Torberts are described as “retired school teachers with a lifelong commitment to the success of public education.” Marcus is “an active advocate in her community for respect for civil liberties, including freedom from government-sponsored religion,” the motion states.

The Maine attorney general’s office, which is defending the commissioner, said Tuesday that it won’t oppose the motion to intervene.

Keller, the plaintiffs’ attorney, said his clients would oppose it.

“The proposed intervenors do not have standing to intervene in this case,” he said in an email. “In 2002, the U.S. Supreme Court made it clear that there is no constitutional violation if states empower families to choose religious options as part of an educational choice program. … The proposed intervenors cannot claim any constitutional harm should the parents in this case prevail in striking down Maine’s exclusion of sectarian schools from its town tuitioning program.”

U.S. District Judge D. Brock Hornby has not yet set a hearing on the motion to intervene.

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