he use of public vouchers for tuition at parochial and other religious schools would violate the First Amendment separation of church and state, the U.S. Court of Appeals for the First Circuit ruled last week. The decision by a three judge panel was announced yesterday; it involved a ruling in a Maine case where five Roman Catholic families had sued the state department of education, challenging the exclusion of religious schools from a public voucher program. Under the Maine voucher system which covers an estimated 14,000 students, families are subsidized for sending their children to private schools when there is not a public school in the area. The vouchers, though, can only be used at nonsectarian schools. Plaintiffs had argued that this violated their freedom of religion.

   Chief Judge Juan Torruella wrote that, "Writ simple, the state cannot be in the business of directly supporting religious schools." He described any payments made by a state to religious schools a "quantum leap" in legal judgment, adding, "Creating such a breach in the wall separating the state from secular establishments is a task best left for the Supreme Court to undertake..."

   The ruling comes one month after Maine's Supreme Judicial Court rejected an appeal by a group of families who also challenged the restriction on the voucher program. In that 5-1 decision, justices ruled that "Choice alone cannot overcome the fact that the tuition program would directly pay religious schools for programs that include and advance religion ... None of the Supreme Court's decisions to date have ever intimated that such direct subsidies of religious schools could survive an Establishment Clause challenge..."

   "While it may be possible for the Legislature to craft a program that would allow parents greater flexibility in choosing private schools for their children, the current program could not be easily tailed to include religious schools without addressing significant problems of entanglement or the advancement of religion..."

   Pat Robertson's American Center for Law and Justice had represented the families in the Circuit Court case. Jay Sekulow, ACLJ chief counsel, said that he was disappointed by the decision, but not surprised. "What the Court of Appeals has done is basically treat religious people as if they're subversive to the American public. It is penalizing religious people and religious values..." Sekulow added that his group intends to appeal the case to the U.S. Supreme Court.

   Groups opposing school vouchers, though, praised the decision. A spokesman for American United for the Separation of Church and State described the ruling as "monumental." Michael Simpson of the National Education Association also hailed the ruling, opining "This court got it right. Here we have a federal court who is more experienced in constitutional law matters that reads the law the right way..." Simpson added that the case will help to establish a binding legal precedent, and, "We think that decision puts the kibosh on religious school voucher efforts" in the five states covered by the Circuit Court. They include Massachusetts, Maine, New Hampshire, Rhode Island and the territory of Puerto Rico.

   This latest decision in the spreading legal war over voucher programs puts even more pressure on the U.S. Supreme Court to take up the issue and resolve the complex constitutional questions involved. State supreme courts in Arizona, Ohio and Wisconsin have weighed in on this issue, all ruling favorably on voucher and other tuition credits for religious schools.

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