Jan. 7—Two religious schools in Maine asked the 1st U.S. Circuit Court of Appeals in Boston on Tuesday to allow them to tap into public education dollars, even though it could violate the state’s anti-discrimination law.
For decades, Maine excluded religious schools from a program that allows public money to be used for private schools if no local public options are available. But in 2022, the U.S. Supreme Court struck down that ban with Carson v. Makin, saying the policy violated the constitutional right to religious exercise.
However, little changed because the Maine Legislature had amended the an anti-discrimination law before the ruling to include religious schools. That law, called the Maine Human Rights Act, requires religious schools to follow non-discriminatory hiring and admission practices, allow students to express gender-identities different than those assigned at birth, and permit students to express and practice a religion different than the school’s.
Only one school — Cheverus High School in Portland — applied for the state reimbursement program following the ruling.
Two other religious schools have since challenged the anti-discrimination policy in court. Crosspoint Church in Bangor, the plaintiff of the original Supreme Court case, filed a civil complaint in federal court in March 2023. And a group, including St. Dominic Academy in Auburn and a pair of parents, filed suit in June of the same year.
A U.S. District Court judge denied an emergency request to stop enforcement of the state’s law last February. The two schools then appealed their request to the higher court, asking for that decision to be overturned. The justices considered their arguments Tuesday but did not make an immediate ruling.
Crosspoint’s attorney Tiffany Bates said the state’s policy violates the free exercise clause, and that the law is not equally applied because it only bears on some schools, not all.
“Maine’s interest, it is stated, is to make sure that public funds don’t go to promoting discrimination, yet they have not required schools outside the state to abide by those anti-discrimination laws,” Bates said.
The judges appeared skeptical of that argument, and had a lot of questions about how general applicability should be defined in this case. Judges pressed Bates on her argument that the law is unequally applied because it excludes higher education and schools outside Maine. They also asked her whether she views anti-discrimination as a more compelling government interest than religious freedom.
“The Supreme Court has not said there is a compelling interest of the highest order in regards to sexual orientation and gender identity,” Bates responded. She said in cases where the Supreme Court has weighed anti-discrimination laws and constitutional protections, the latter has prevailed.
According to Chief Deputy Attorney General Christopher Taub, who is representing the state in both cases, just two out of 4,500 students eligible for the tuition program attend out-of-state schools. He pushed back on the idea that they are an important exception because of how few students participate.
He also argued that Maine has treated religious schools just like other schools since the Supreme Court ruling, and that Crosspoint is looking for preferential treatment.
“Specifically, it wants to be exempted from complying with the Maine Human Rights Act, even though every other school that receives public tuition payments in the program must comply with that law,” Taub said.
The attorney for St. Dominic Academy, Adèle Keim, carried on Crosspoint’s argument about general application of the anti-discrimination law, citing out-of-state schools and higher education institutions, which she said can receive public funds but are not governed by the policy. Keim invoked the all-girls school Dana Hall in Massachusetts, and Bowdoin College, as examples.
“Here Dana Hall is treated better than St. Dominic,” she said. “You can’t treat Dana Hall and Bowdoin better than you’re treating St. Dominic in Auburn.”
The judges also had questions about employment rules, which Keim argued the state applies inconsistently to religious schools in the tuition program and churches more broadly.
But Taub said those are two different policies and are applied differently depending on whether an organization chooses to take public funds.
“St. Dominic, regardless of whether it takes public funds, can require all of its employees to comply with its religious tenets, and it can require them to be members of the same religion,” Taub said. “If it takes public funds, the difference is going to be that it can no longer discriminate simply because of a person’s status. It can’t refuse to hire a person simply because they’re gay.”
He also argued the St. Dominic case has no standing because the school does admit students regardless of sexual orientation or religion. He told the judges that higher education is also irrelevant, because the anti-discrimination law governs compulsory education that is paid for entirely by public funding.
Crosspoint Church is being represented in part by First Liberty Institute, a Texas-based legal organization that takes on religious freedom cases. Their attorneys called Maine’s rules “odious to our Constitution.”
“Maine excluded religious schools from its school choice program for over 40 years, but the U.S. Supreme Court made it clear in Carson v. Makin that such religious discrimination is unconstitutional,” First Liberty Senior Counsel Jeremy Dys said in a statement Tuesday. “Now, our clients would be punished with heavy fines if they hold to their religious beliefs.”
The national and Maine chapters of the American Civil Liberties Union, along with Americans United for Separation of Church, the National School Boards Association, Pastors for Children and the Network for Public Education all filed briefs in support of the state.
“While a private religious school may have sincerely held beliefs that motivate its discrimination, the state need not subsidize and support discriminatory conduct,” the ACLU’s brief states. ” In claiming a constitutional right to discriminate with taxpayer funding, Appellant Crosspoint Church seeks to upend these long-standing safeguards and contravene a neutral and generally applicable state law.”
In a statement Monday, the ACLU of Maine alluded to the broader implications of the appeals.
“The cases mark the beginning of a new front in the national legal landscape that threatens to give religious schools a license to discriminate using taxpayer dollars,” it said.
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