PORTLAND, Maine (AP) — Lawyers for Maine families that want the state to pay their religious school tuition said Friday they’ll appeal to the U.S. Supreme Court if an appellate court rules in favor of the state.

A panel of appeals court justices is deciding whether the state of Maine should pay for the three families to send their children to religious schools because they live in districts that lack high schools. The families made their case in U.S. Court of Appeals for the First Circuit in Boston on Wednesday when they argued the Maine Department of Education should pay the tuition.

The Maine education department typically pays tuition for students in such districts to attend other public or private schools, but the money can’t go to religious schools.

Tim Keller of Institute for Justice in Virginia, which is representing the families, said Friday the justice panel appeared skeptical on the merits of the case, so the families might be in a position to appeal to the high court.

“The state cannot deny a generally available benefit based on religion,” Keller said. “They chose a private religious school – the state cannot deny them that benefit on that basis alone.”

The families live in Palermo, Orrington and Glenburn, and are seeking the tuition to send their children to Christian schools in Waterville and Bangor.

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A Maine District Court judge ruled in favor of the department last year, but the families vowed to fight the decision. Maine Attorney General Aaron Frey said Friday he’s optimistic the higher court will agree Maine’s law is constitutional.

“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,” Frey said.

Several groups, including the ACLU of Maine, filed a brief in support of Maine’s law. ACLU of Maine legal director Zachary Heiden said previous court rulings have shown Maine’s decision to prevent taxpayer funding for religious tuition is constitutional and it “would be devastating to religious freedom to reverse course now.”