Attorneys for three families arguing the state should pay tuition for their children to attend private religious schools because they live in school districts with no high schools made their case before a federal appeals court in Boston on Wednesday.

Angela and Troy Nelson with their children, Royce, and Alicia, at their home in Palermo in August 2018. They and two others families say the state should pay tuition for private religious schools because they live in districts with no high schools. Joe Phelan/Kennebec Journal

The families have pointed to a 2017 Supreme Court ruling in which the court decided a church preschool should be able to benefit from public funding to resurface a playground to argue that the Maine Department of Education should pay their out-of-district tuition at religious schools.

Maine District Court Judge D. Brock Hornby ruled in favor of the department in June, upholding a Maine law that prohibits state tuition money from being used at religious schools.

However, he also said the Supreme Court case did not definitively upend case law barring public money from going to religious education and that the appeals court would need to address that issue.

“We believe it’s now clear the government may not exclude religion wholesale from a generally available benefit program,” Tim Keller, a senior attorney from the Virginia-based Institute for Justice, which represents the families, said during oral arguments in the 1st U.S. Circuit Court of Appeals on Wednesday.

A decision has yet to be issued in the case, which is being heard by a panel of three justices.

“We are optimistic the panel will ultimately agree with the lower court’s decision that the Maine law is constitutional,” Maine Attorney General Aaron M. Frey, whose office is representing the state in the case, said in a statement Wednesday.

“A public education system should be one that promotes diversity and tolerance and exposes children to a broad range of ideas. Maine’s Legislature wisely chose to exclude religious schools from the public education tuition program. Parents certainly have the right to opt out of the public education system and send their children to religious schools, but public dollars should not be used for that purpose.”

The lawsuit involves three families: Angela and Troy Nelson of Palermo, who have sought the tuition benefit to send their daughter to Temple Academy in Waterville; Judy and Alan Gillis of Orrington, whose daughter attends Bangor Christian School; and David and Amy Carson of Glenburn, who also have a daughter who attends Bangor Christian.

Each family lives in a community without a district high school. The department will pay a certain amount of tuition for students in such districts to attend outside public or private schools, but the money cannot be applied to religious schools.

In his ruling in June, Hornby cited the Maine Human Rights Act, which prohibits religious groups from receiving public money if they maintain a discriminatory hiring policy against LGBTQ people. Both Bangor Christian and Temple Academy do so, according to court documents.

The American Civil Liberties Union of Maine, which has argued in support of the state, said Wednesday that to reverse the district court ruling would be “devastating for religious freedom.”

“Maine residents never should be forced to support religious education or discrimination,” said Alex J. Luchenitser, associate legal director of Americans United for Separation of Church and State in a statement issued through the ACLU. “Diverting public funds to those uses would violate the religious freedom of taxpayers, parents and students.”