Maine continues to discriminate against faith-based schools

Effective October 18, 2021, Maine amended its Human Rights Act (MHRA) by “add[ing] gender identity, religion, ancestry, and color” as protected classes under the statute and narrowed the religious exception to state that ‘[n]othing in this section’…requires a religious corporation, association or society that does not receive public funding to comply with this section as it relates to sexual orientation or gender identity.” Unlike federal law, the MHRA grants no “exemptions from the prohibition against discrimination on the basis of religion in education and further requires that ‘to the extent that an educational institution permits religious expression, it cannot discriminate between religions in so doing.’”

About nine months later, on June 21, 2022, the Supreme Court invalidated a different Maine statute excluding “sectarian,” or faith-based, schools from its “tuitioning” program in Carson v. Makin (Carson). The program provided tuition payments to parents living in rural districts lacking their own high schools so they could send their children to the schools of their choice. The Supreme Court invalidated the “nonsectarian” requirement as violating the Free Exercise Clause because it was not neutral toward religion and it did not afford parents the opportunity to send their children to the schools of their choice.

On remand, the federal trial court in Maine decided that because the parents suffered an irreparable injury on having their child excluded from the program, they were entitled to a permanent injunction against its enforcement. In light of recent developments, this column examines a related case before reflecting on its meaning for religious freedom in education.

Following Carson, Bangor Christian Schools, established in 1970, a ministry of the Bangor Baptist Church, sued Maine’s commissioner of education, seeking to enjoin the MHRA’s enforcement. In Crosspoint Church v. Makin (Makin) officials raised four points in challenging the revised MHRA as effectively excluding the school from the tuitioning program in violation of the Free Exercise, Establishment, and Free Speech Clauses of the U.S. Constitution.

First, officials believed the change was not neutral because “[a]lthough the poison pill has ramifications for many religious schools, its timing and structure show that its purpose was to preemptively exclude Plaintiff from the tuitioning program in order to moot Carson…[t]his result is intentional and specifically targets Plaintiff’s religious beliefs.” In other words, officials viewed this change as designed to circumvent Carson.

Second, officials charged that assuming the change is neither neutral toward religion nor generally applicable because it exempts single-sex schools from its provisions, the trial court should have applied strict scrutiny analysis. Under this more stringent standard governmental restrictions on fundamental rights, such as religious freedom, must be as narrowly tailored as possible to achieve compelling governmental interests and are usually struck down.

Third, Crosspoint contended that the law “prohibit[ing] it from hiring only co-religionists violates the Establishment and Exercise Clauses.”

Fourth, Crosspoint challenged the MHRA as violating its right to free speech insofar as it is impermissibly “based on content and viewpoint, because it is designed to force Plaintiff to stop educating its students from its religious perspective as a condition of participating in the tuition program.”

In sum, Crosspoint alleged that because the statutory modifications relating to religion, sexual orientation, and gender identity would have caused it irreparable harm, the balance of equities and public interest favored its being granted an injunction.

On February 27, 2024, a federal trial court judge in Maine rejected Crosspoint’s suit because he did not agree it would have succeeded on the merits or suffered irreparable harm. The judge began by denying the Free Exercise Clause claims, describing the changes as neutral, generally applicable, and rationally related to the legitimate government interests.

Second, the judge denied Crosspoint’s contention that the MHRA violated its speech rights because the law regulates conduct, not speech.

Third, the judge decreed that the employment provisions restricting Crosspoint from hiring members of their own religion did not limit any constitutionally protected conduct.

The judge concluded by acknowledging that Makin would probably be appealed to the First Circuit, perhaps the Supreme Court even as Crosspoint’s attorneys announced they would seek further review. One of Crosspoint’s lawyers stated that “the gender identity and sexual orientation provisions, and those that would prevent the school from turning away anyone of a different religion, seem ‘designed to keep religious schools from participating’ in the state’s tuition program…..prohibit[ing] the school from teaching from its religious perspective.”

It is unclear how the judge, in his order in Makin, concluded that Crosspoint did not experience irreparable harm. In one tangible example (let alone the constitutional injuries) he ignored Crosspoint’s possible loss of attendance because “parents and students will still have to bear a financial burden that other similarly situated students are not required to bear” due to being excluded from the program.

As to the judge’s three points, it is astounding that he upheld the MHRA as neutral even though it essentially singled out faith-based schools. Second, in rejecting the speech claim because Crosspoint “was free to say whatever it wishes; it just cannot exclude willing listeners for discriminatory reasons,” he offered a meaningless distinction without a difference.

Third, and perhaps most egregiously, the judge disregarded clear language in the ministerial exception of Title VII of the Civil Rights Act of 1964, the most comprehensive federal anti-discrimination statute on employment. Under this exception, “it shall not be an unlawful employment practice for a school…or other educational institution or institution of learning to hire and employ employees of a particular religion if such school…is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum…is directed toward the propagation of a particular religion.” This should have been an easy win for the school.

The media’s response to Makin and its potential impact on religious freedom in education was, unfortunately, not surprising. Rather than focus on Crosspoint’s efforts to defend its constitutional rights to freedom of religion and speech, a local news story depicted officials as trying to “ignore anti-discrimination law” despite unequivocal Supreme Court precedent supporting their position. In Trinity Lutheran Church of Columbia v. Comer the Court explained that excluding a faith-based institution or individual “from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.” Even though the Court buttressed this rationale in Carson, state officials and the trial judge overlooked these clear precedents.

People, of course, have right to live the lifestyles of their choices freely in line with their own beliefs and to be treated respectfully in doing so. But why is this so often a one-way street? What do those who oppose the rights of faith-based schools, institutions, and believers to live and operate as they wish consistent with their sincerely held religious beliefs have to gain by denying them of their rights to do so?

Further, as I’ve asked in prior pieces, why would potential employees want to work in institutions or parents send their children to schools where they refuse to comply with the basic religious missions and rules under which they operate? What can possibly be gained by being involved in institutions with which individuals do not agree?

In light of Carson and Trinity Lutheran’s emphasizing that people of faith and their institutions cannot be denied generally available benefits, it is frustrating and alarming that public officials would enact such a change designed to thwart a precedent with which they disagree. While there is a reasonable chance that Crosspoint’s appeal in Makin will prevail based on Supreme Court precedent, it is troubling that so much anti-Christian sentiment remains in education. Although differences of opinion will always be present, let us hope that all can respect the First Amendment’s guarantee of the right to the free exercise of religion in education and beyond.