Maine’s doubles down again on discrimination against religious schools

As noted in an August 2024 column , anti-religious discrimination continues unabated in Maine despite the Supreme Court’s June 21, 2022 ruling in Carson v. Makin.

In Carson, the Court reasoned that state officials could not exclude faith-based schools from Maine’s “tuitioning” program, which aids families in rural districts lacking public high schools. The Court, in the third of a trilogy of cases discussed in my earlier posting, extending the parameters of religious liberty in education, held that the program’s “nonsectarian” requirement banning faith-based schools from participating in the “tuitioning” program violated the Free Exercise Clause.

Why? Because it was neither neutral toward religion nor did it allow parents to send their children to the schools of their choice.

As evidence of their continuing hostility to faith-based schools, in anticipation of Carson and eight months before the Supreme Court rendered its judgment, Maine revised its Human Rights Act. The updated MHRA essentially negated Carson’s rationale on state grounds. Then, post-Carson, a federal trial court judge rejected the claims of Catholic parents and educational officials in St. Dominic Academy v. Makin, that the MHRA violated their First Amendment Free Exercise, Free Speech, and Establishment Clause rights.

Subsequently, the Becket Fund for Religious Liberty  represented the plaintiffs on their appeal to the First Circuit during oral arguments in St. Dominic and a related dispute on January 7, 2025.

St. Dominic’s and the MHRA

As noted, effective October 18, 2021, in an attempt to blunt the impact of Carson, Maine enacted a revised MHRA making it “unlawful educational discrimination in violation of this Act, based on sex, sexual orientation or gender identity…to [e]xclude a person from participation in, deny a person the benefits of, or subject a person to, discrimination in any academic, extracurricular, research, occupational training or other program or activity.”

Additionally, the law specifies 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….” The MHRA is inapplicable to out-of-state boarding schools receiving “tuitioning” funds.

Adding that “to the extent that an educational institution permits religious expression, it cannot discriminate between religions in so doing,” the MHRA essentially bans officials in faith-based schools hoping to participate in the program from conducting religious activities unless they permit all forms. This means, for instance, that Catholic schools could not have Mass celebrated unless officials allow services of other faiths.

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

Rather than rehash the trial court’s order, suffice to say the judge rejected the plaintiffs’ request to enjoin enforcement of revised MHRA. In brief, the judge conceded at the outset that “the plaintiffs have raised significant constitutional issues,” Yet, he incredulously “conclude[d] that the Plaintiffs have failed to present sufficient evidence that the addition of religion as a protected class and the limitation of the exemption from the MHRA’s sexual orientation and gender identity provisions were passed to ‘impede or constrain religion.’”

Possible negative consequences

As evidence of his intolerance and prejudice toward people of faith, state attorney Aaron Frey’s comments following Carson remain relevant as reflections of Maine’s ongoing antipathy toward faith-based schools. “I intend to…address the Court’s decision and ensure that public money is not used to promote discrimination, intolerance, and bigotry” he said, adding that he 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”

While one can appreciate why the MHRA aims to protect those who have been subjected to unfair treatment in the past due to their sexuality, why do proponents such as Frey demonstrate similar intolerance to those with Christian perspectives?

Frey’s accusation aimed at parents and school officials for the very bigotry he displayed reveals open contempt for his constituents, Supreme Court precedent, and the First Amendment’s guarantee to the free exercise of religion. Frey and others certainly have the right to disagree with Carson. But what is to be gained by speaking so harshly about believers, denying parents the opportunity to educate their young as they wish consistent with Supreme Court precedent while suggesting that doing so promotes discrimination, intolerance, and bigotry?

If the outcome in St. Dominic stands, four potentially negative consequences for religious freedom in education are possible.

First, it would continue and even encourage overt discrimination against people of faith and their schools. The revised MHRA thus calls to mind a concern Justice Alito raised in his dissent in Obergfell v. Hodges where in the Supreme Court enunciated a right to “same-sex marriage”. Alito cautioned that it remains to be seen whether those who hold true to their Christian beliefs will be limited to being able “to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.” What is transpiring in Maine certainly resembles what Alito describes.

Second, the trial court raised the specter of whether faith-based schools can still receive generally available funds and not be discriminated against solely because of their religions. The judge ignored Chief Justice Roberts’ blistering comment in 2016’s Trinity Lutheran Church of Columbia v. Comer where he emphasized that excluding the Church and its Child Care Center “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.”

Third, concerns emerge over whether officials in faith-based schools will be free to focus on hiring individuals whose lifestyles are compatible with church teaching; whether they can continue to teach Christian beliefs about sex, sexual orientation, and gender identity; and whether they must permit all forms of religious worship in their schools. If Maine can deny faith-based schools and parents opportunities to participate in the “tuitioning” program, then this will limit their rights both to the free exercise of religion and to where they can have their young educated.

Fourth, by allowing Maine’s Human Rights Commission to evaluate what educators can teach about religion in faith-based schools, public officials unconstitutionally intrude in matters beyond their expertise, trammeling the First Amendment right to the free exercise of religion. Simply put, it is absurd for secular officials to think they have the authority to evaluate what matters of faith educators can address in religiously affiliated schools.

In sum, it is unfortunate that Maine officials are committed more to ideological goals than ensuring that all children can be educated consistent with the wishes of their parents After all, state officials failed to remember that “[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Stay tuned as the First Circuit, which seemed unreceptive to Maine’s attempt to apply the MHRA’s antidiscrimination provisions to faith-based schools, should resolve St. Dominic in the coming months.