Students exit St. Dominic Academy in Auburn, Maine. The school is one of two that is appealing a federal court decision that requires religious institutions to adhere to the state’s nondiscrimination law to receive public funding. (Photo by Becket)
Two religious schools in Maine are appealing a federal court decision that requires them to adhere to the state’s nondiscrimination law to receive public funding.
Last year, both Crosspoint Church, which operates Bangor Christian Schools, and St. Dominic Academy in Auburn filed cases against the state in federal court asking to be exempt from the Maine Human Rights Act. Both religious organizations lost their cases in the United States District Court for the District of Maine, but their appeals will be heard in the U.S. Court of Appeals in Boston on Tuesday.
The appeal is representative of a broader issue being debated across the country to determine to what extent states can continue to apply their general anti-discrimination laws to religious entities, especially when those religious entities take public money.
If the appeals court rules in favor of Crosspoint or St. Dominic’s, religious schools in Maine will no longer have to comply with laws that ban discrimination on the basis of gender identity, sexual orientation or religion. They will also be on the list of school options parents in rural areas can choose to send their children to. If the lower court decision is upheld, Maine can continue requiring all schools who take public money to follow the state’s anti-discrimination provision.
“The Maine Human Rights Act is intended to protect people from discrimination. The purpose of the law is not to interfere with anyone’s religion, and the purpose matters,” said Zach Heiden, chief counsel at the American Civil Liberties Union of Maine. “If the government passed a law intending to harm Catholics or Muslims, that would be unconstitutional. But laws that incidentally burden religion are generally okay.”
State argues for compliance with anti-discrimination law
Towns in Maine that do not have their own public high schools or middle schools can pay to send residents to another public or private school. Before the local school unit can pay tuition to a private school, that private school must be approved by the Maine Department of Education to receive public funds. The same applies if parents want to use the tuition reimbursement program to send their children to out-of-state private schools.
These private schools also have to comply with all state laws, including the Maine Human Rights Act, which bans discrimination based on gender identity, sexual orientation, and religion.
But some religious schools have policies that may violate the state’s nondiscrimination law. For example, St. Dominic’s Academy will admit any student, but gives preference to those who are Catholic, according to the school’s counsel, Ben Fleshman, an attorney with Becket, a law firm that describes its mission as protecting religious liberty.
Bangor Christian’s website says it requires that students comply with the school’s belief system.
“No student is admitted or allowed to remain in Bangor Christian Schools who does not agree and cooperate with the overall purpose and program of the school,” the admissions page states.
The school’s attorney, Jeremy Dys, senior counsel for national religious freedom organization First Liberty Institute, said the policy is more expansive than that.
“Bangor Christian Schools’ policy requires that people recognize that sexual orientation, gender, all these things are created, they’re defined by God,” he said. “And any sexual activity outside of the marital union or an attempt to deny the created order of gender would be a violation of their religious beliefs.”
Christopher Taub, Maine’s chief deputy attorney general who is representing the state in the lawsuits, said these are examples of discrimination.
“The state has a compelling interest in stopping discrimination in schools. If you’re going to take public money and educate children at public expense, our view is that you should be required to comply with the anti-discrimination provisions,” he said.
“If you don’t want to comply with the Maine Human Rights Act, then don’t take public funds.”
According to the religious schools, the anti-discrimination law is the state’s way of imposing its ideology and punishing institutions for having a contradictory belief system.
“The state of Maine says we have a better ideology, and we require you to believe what we believe,” said Dys.
“When you make a public benefit available, you cannot lay roadblocks in the way for people of faith to take advantage of those benefits.”
Supreme Court ruled in favor of Maine’s religious schools
Beginning in 1981, Maine’s religious schools were ineligible for tuition reimbursement. However, in 2018, David and Amy Carson of Glenburn sued the state to be able to send their children to Bangor Christian Schools and Temple Academy through the reimbursement program.
Though there had been several past lawsuits that failed to change Maine’s law, the Carson case went to the U.S. Supreme Court, which ruled with a 6-3 majority in 2022 that Maine could not “disqualify certain private schools from public funding solely because they are religious,” according to the majority opinion.
Even though religious schools can now participate in tuition reimbursement, only one religious school — Cheverus High School in Portland — has applied for approval as a tuition-receiving school. Cheverus was granted approval in 2022, the first year that allowed for sectarian schools to receive public funding, and received approval again this year, according to a Maine Department of Education spokesperson.
“Most religious schools in the state haven’t applied yet because nobody wants to have their religious identity stripped away from them,” Fleshman said.
Taub said allowing religious schools an exemption would be unfair.
“In our view, what they’re looking for is not to be treated the same as other schools that participate, which is what the Supreme Court said we need to do,” he said. “But they actually want to be treated more favorably than other schools.”
Bangor Christian Schools did not apply for the program because Crosspoint Church’s ideology conflicts with the rules it would have to follow, according to Dys.
“They can’t agree with what the state of Maine holds as the preferred belief system, and so to apply and say, ‘Yes, we’re going to abide by the rules of the state of Maine,’ would be to violate the conscience of Crosspoint and Bangor Christian Schools,” he said.
“Maine, I think, just fails to realize that our client wants to take advantage of this opportunity but in order for them to do that, they would have to disagree with two millennia of religious teaching, meaning that they would have to affirm the preferred ideological beliefs of the state of Maine.”
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