Maine doubles down again on discrimination against faith-based schools

Anti-religious discrimination continues unabated in Maine two years after the Supreme Court’s 2022 ruling in Carson v. Makin. That ruling prevented officials from excluding faith-based schools from the state’s “tuitioning” program, which assists families in rural districts lacking public high schools. The Court reasoned that the program’s “nonsectarian” requirement banning faith-based schools from participating in the program violated the Free Exercise Clause because it was neither neutral toward religion nor did it allow parents to send their children to the schools of their choice.

In anticipation of Carson, effective October 18, 2021, Maine amended its Human Rights Act (MHRA) by including “gender identity [and] religion…as protected classes…[but] narrowed the religious exception to read 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, Maine grants no “exemptions from the prohibition against discrimination on the basis of religion, mandating that ‘to the extent that an educational institution permits religious expression, it cannot discriminate between religions in so doing.’”

The MHRA thus forbids officials in faith-based schools participating in the “tuitioning” program from conducting religious activities unless they permit all forms. Which means, for example, that Catholic schools could not celebrate Mass unless educators allow services of other faiths.

Moreover, the law basically grants Maine’s Human Rights Commission the authority to determine what faith-based schools can teach about marriage, sexuality, and family life.

Having failed in earlier litigation, as did the Bangor Christian Schools, officials of St. Dominic Academy were joined by the Diocese of Portland and a family in unsuccessfully challenging parts of the MHRA’s antidiscrimination provisions. Most notably, the plaintiffs claimed that the MHRA violated their First Amendment Free Exercise, Free Speech, and Establishment Clauses.

St. Dominic Academy v. Makin

Following the judge’s denial of the plaintiffs’ request to enjoin enforcement of the disputed provisions in St. Dominic Academy v. Makin, let’s review his order.

In the opening paragraph of his 75-page August 8 order, the judge conceded that the case “raised significant constitutional issues,” over the MHRA’s provisions on religion, sex, sexual orientation, and gender identity. Yet, he still denied the plaintiffs’ motion for a preliminary injunction because he thought they are unlikely to succeed on the merits of their claims.

St. Dominic’s officials fear they may neither to be able to hire individuals whose lifestyles comply with Catholic Church doctrine nor teach their beliefs about sex, sexual orientation, and gender identity. The parents seek to exercise their right to choose where their young will attend school.

The judge decreed that the MHRA did not violate the Free Exercise Clause because, while it was not generally applicable, he indicated it could survive the highest level of constitutional analysis, strict scrutiny, based on its neutrality. When courts apply strict scrutiny, though, such provisions usually fail. The judge rejected the Free Speech claim because he asserted that MHRA does not compel speech. The judge added that the plaintiffs failed to present adequate evidence that the MHRA violated the Establishment Clause by creating excessive entanglement with religion.

In sum, while reiterating “that this case poses novel constitutional issues,” as in an earlier, similar dispute, the judge kicked the can down the road in “attempt[ing] to frame [his] opinion as a prelude to a challenge to the…First Circuit for a more authoritative ruling.”

Context, intolerance, and hypocrisy

In three opinions authored by Chief Justice Roberts between 2017 and 2022, the Supreme Court expanded the limits of aid to students and their faith-based schools.

First, in Trinity Lutheran Church of Columbia v. Comer, Roberts succinctly observed that excluding it “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.”

Similarly, in 2020’s Espinoza v. Montana Department of Revenue, the Court held that because a tax credit program was permissible under the Establishment Clause, the state constitutional ban on aid to faith-based schools discriminated based on religious status. Roberts explained that Montana could not offer less than is available under the First Amendment because denying faith-based schools opportunities to receive public benefits solely because of their religious character violated the Free Exercise Clause.

Most recently, as noted, in Carson, the Supreme Court invalidated the “nonsectarian” requirement as violating the Free Exercise Clause. On remand, the judge from St. Dominic decided that because the parents suffered an irreparable injury insofar as the nonsectarian requirement violated their right to send their children to the school of their choice, they were entitled to a permanent injunction against its enforcement.

In light of this trilogy of cases, earlier comments by its Attorney General, Aaron Frey, decrying the outcome, are ironic at best, hypocritical at worst. Although two-years old, Frey’s remarks remain relevant because they reflect Maine’s ongoing opposition to welcoming faith-based schools in the “tuitioning” program.

According to Frey, “I intend to…address the Court’s decision and ensure that public money is not used to promote discrimination, intolerance, and bigotry.” Frey considered it “disturbing that the Supreme Court found that parents also have the right to force the public to pay for an education that is fundamentally at odds with values we hold dear” even as he sought to deny them opportunities to exercise their faiths freely.

Frey’s use of such intolerant language about the beliefs of Christians and others demonstrates his disrespect not only for his constituents but also the nature of the First Amendment’s guarantee to the free exercise of religion.

Frey and officials defending the MHRA certainly have the right to disagree with Carson. Still, what is to be gained by denying parents the opportunity to educate their young as they wish consistent with clearly established Supreme Court precedent while suggesting that doing so promoted discrimination, intolerance, and bigotry?

Frey should be careful when criticizing the values of others in light of his having been investigated for what he called “an error in judgment” after having engaged in a sexual relationship with a married subordinate, failing to report it in a timely manner. Given Frey’s (mis)behavior, it is unclear which Christian values are at odds with his espoused “values we hold dear”.

If Frey and other critics focused on ensuring that all students received the educations to which they are entitled rather than seek to deny them access to schooling by imposing their “values” on them, then public discourse would have been much better off by demonstrating that people can disagree without being disagreeable.