The battle for religious liberty in education rages on in Maine

The battle for religious liberty in education rages on. This important fight continues even though the Supreme Court, in opinions (three in the past six years) by Chief Justice John G. Roberts, invalidated laws limiting the rights of institutions and parents to participate in programs offering generally available aid simply because they are religiously-affiliated.

Yet, less than a year after the Supreme Court buttressed religious freedom in education by invalidating a Maine statute in Carson v. Makin denying parents who lived in rural districts lacking secondary schools opportunities to have their children educated in the religiously-affiliated institutions they chose, state officials have thrown a new wrinkle into the mix in attempting to circumvent this outcome. In St. Dominic Academy v. Makin, filed earlier this month, school administrators and parents challenged new religious neutrality and nondiscrimination requirements adopted in a “open and blatant” attempt to ignore the original Makin.

Among other criteria (discussed further below), the law at issue in St. Dominic Academy mandates that “to the extent that an educational institution permits religious expression, it cannot discriminate between religions in so doing.” This means, for example, that Catholic educational leaders could not invite priests to celebrate Masses unless they offered services for individuals of other faiths—a laudable goal, but one beyond the authority of state officials to impose because it is a matter of faith.

Controversy re-emerges in Maine

Controversy returned to Maine a year after the Supreme Court’s June 2022 judgment in Carson v. Makin continued its trend of safeguarding religious freedom in education. As noted, in Carson the Court invalidated a statute that denied parents who lived in rural districts without secondary schools the right to send their children to the schools of their choice. The Court vitiated the law because it limited the options of parents to enroll their children in nonsectarian, rather than faith-based, schools in violation of the First Amendment’s Free Exercise and Establishment Clauses as well as the Equal Protection Clause of the Fourteenth Amendment, insofar as it was not neutral toward religion in light of its excluding religious school from the options.

Despite the Supreme Court’s unequivocal holding in Makin that Maine’s limitations on religious freedom were unconstitutional, public officials are again seeking to restrict the rights of parents to send their children to a faith-based (this time Catholic) school. Along with the charges identified earlier, the plaintiffs pointed out evidence of anti-religious, if not anti-Catholic, animus, when the state’s attorney general “denounced religious schools that ‘promote a single religion to the exclusion of all others,’” accusing them of “refus[ing] to admit gay and transgender children, and openly discriminat[ing] in hiring teachers and staff.”

Maine’s Attorney General went on to remark that religious schools could not receive public money unless they abandoned their faith-based hiring practices. Moreover, the state’s Human Rights Commission, a quasi-independent agency authorized with enforcing the new standards, “adopted this interpretation knowing that it would discourage religious schools from accepting town tuitioning funds.” Commission officials argued that faith-based schools accepting public funds lose their religious hiring rights and that it can compel them “to enforce students’ preferred pronouns— regardless of their parents’ wishes, and without reference to the student’s biological sex.”

In light of Maine’s continuing disregard for parental rights as enunciated in 1925’s Pierce v. Society of Sisters of the Holy Name of Jesus and Mary by refusing to recognize that “the child is not the mere creature of the state”, Becket Fund for Religious Liberty, a non-profit public interest law firm based in Washington, D.C., intervened. Becket, whose “mission is to protect the expression of all faiths, from A to Z—Anglican to Zoroastrian,” agreed to represent the parents who wished to send their children to St. Dominic Academy and its administration. The plaintiffs charged state authorities with religious discrimination, as Becket filed a complaint against the Commissioner of the Maine Department of Education, Pender Makin, the named defendant in 2022’s Supreme Court case; she has apparently not learned from her earlier mistake.

Article VIII of Maine’s constitution mandates the creation of public schools to educate its children. However, because“[o]f the 260 school administrative units [SAUs] in Maine, 143 do not operate a secondary school.., ” even before it became a state, Maine created a “tuitioning” program to educate children from SAUs lacking public high schools. This program became law as the Free High School Act of 1873, which allowed officials in mostly rural and small towns to opt out of building public secondary schools if they paid tuition for students to attend private institutions known as “town academies” to help ensure that Maine had an educated citizenry. A 1909 revision of the law directed officials to pay tuition for students at approved private schools; the legislature excluded faith-based schools from the program in 1981 by limiting availability to nonsectarian institutions.

The Supreme Court and religious freedom in education

In 2017’s Trinity Lutheran Church of Columbia v. Comer, the Supreme Court found that the officials in Missouri could not prevent administrators at a faith-based preschool and daycare center from participating in a program to fund the purchase of a new playground surface to protect children. Relying on the Free Exercise Clause, Chief Justice Roberts pithily concluded that “the exclusion of Trinity Lutheran Church 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.”

Three years later, in Espinoza v. Montana Department of Revenue, the Supreme Court decided that parents who wished to send their children to faith-based schools could not be excluded from a state tax credit program that would have allowed them to contribute to student scholarship organizations. Chief Justice Roberts invalidated language in the state constitution “bar[ring] religious schools from public benefits solely because of the religious character of the schools” as a violation of the Free Exercise Clause.

After the federal trial court in Maine and the First Circuit upheld the statute in Makin, the Supreme Court invalidated the restriction that tuition assistance payments could only be used at “nonsectarian” schools because it “effectively penalizes the free exercise of religion.” Relying on Trinity Lutheran and Espinoza, Chief Justice Roberts observed that “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.” He invalidated the statute because it allows for tuition payments “at a public or private school, selected by the parent . . . with no suggestion that the ‘private school’ must somehow provide a ‘public’ education.”

Chief Justice Roberts explained that a state’s interest in avoiding a violation of the Establishment Clause does not justify excluding institutions or people from public benefits simply because they are religious. He added that singling out faith-based schools and parents from participating in a program of general availability based entirely on their beliefs violated the Free Exercise Clause.

Rounding out his rationale, Chief Justice Roberts acknowledged that the Supreme Court never allowed states to deny benefits to religious institutions or believers exclusively due to their faiths. He emphasized that allowing public officials to “scrutinize[e] whether and how a religious school pursues its educational mission would also raise serious concerns about state entanglement with religion and denominational favoritism.” Essentially reiterating his point from Trinity Lutheran, Roberts reasoned that “Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment … [because] the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.”

Makin Redux

In St. Dominic Academy v. Makin parents and school officials filed suit charging Maine with creating new religious neutrality and nondiscrimination requirements in “open and blatant” attempts to circumvent Carson by mandating that “to the extent that an educational institution permits religious expression, it cannot discriminate between religions in so doing.” The complaint contended that Maine “removed the religious exemption that had previously allowed religious (but ‘nonsectarian’) schools to handle sensitive issues relating to sexual orientation and gender identity in a way that reflected their faith commitments.”

The complaint indicated that Maine ignored the diocesan expectation that its teachers enter into ministerial agreements under which they are to abide by Catholic Church teachings, whether at work or in their personal lives. The Supreme Court has upheld the ministerial exception in Title VII of the Civil Rights Act of 1964, the most far-reaching federal employment law, which grants religious employers the sole discretion to determine who qualifies as ministers, three times, most recently three years ago in Our Lady of Guadalupe School v. Morrissey-Berru.

The complaint further pointed out that ignoring Supreme Court precedent and Title VII, Maine law makes it unlawful for “any employer to fail or refuse to hire or otherwise discriminate against any applicant for employment because of … sexual orientation or gender identity.” Although the statute includes a religious exemption, akin to Title VII, nothing in it makes this provision contingent on whether faith-based employers receive public funding. In sum, the plaintiffs alleged that “Maine implemented these changes to continue the exclusionary practices that the Supreme Court declared unconstitutional in Carson.”

Why the plaintiffs should prevail

As St. Dominic Academy v. Makin proceeds, it is difficult to imagine how Maine’s attempt to ignore the Supreme Court’s original judgment, let alone the ministerial exception in Title VII, can survive judicial scrutiny. The actions of the state’s attorney general and Civil Rights Commission attempting to restrict the free exercise of religion rights of parents and school administrators clearly violates a basic principle the Supreme Court reiterated in Trinity Lutheran, Espinoza, and the original Carson.

In other words, in trying to impose conditions on how St. Dominic Academy (and likely other faith-based schools, can operate) public officials blatantly ignored the Supreme Court’s rationale that while the disputed language in Espinoza sought to separate church and state more strictly than the Federal constitution, it could not do so because Montana’s constitution lacked a compelling interest that could have satisfied strict scrutiny analysis. By extension, neither can Maine officials impose such limits.

Of course, a variety of attitudes exist with regard to the rights of faith-based schools to operate. However, while Pierce unequivocally upheld the rights of parents to send their children to the (non-public) schools of their choice, the unanimous Supreme Court did recognize that “[n]o question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.”

In prescient words that are as true for St. Dominic Academy as they were in 1925, the Pierce Court reasoned that “[c]ertainly there is nothing in the present records to indicate that they have failed to discharge their obligations to patrons, students, or the state. And there are no peculiar circumstances or present emergencies which demand extraordinary measures relative to primary education.”

In light of this clear statement, it is perplexing why state officials in Maine would ignore Supreme Court precedent and Title VII by advancing their secular agenda at the expense of religious freedom. It is confounding that these officials are overstepping their legitimate boundaries in attempting to impose their wills as to what religious services Catholic, or other faith-based, schools can offer, who they can hire in light of their long-held sincere beliefs, what their teachings should be with regard to human sexuality, and by what names students are to be identified.

The behavior of public officials in Maine reflects the ongoing reality that many critics, if not outright opponents, of Christianity are often led by those who routinely refer to “themselves and their causes [as secular] ‘progressive[s].’” These persons preach the admirable goal of tolerance and respect for others while demonstrating a deep antipathy for the beliefs of those with whom they disagree, especially if they are religious in nature. Such individuals seem to be oblivious to the reality that respect and openness must be mutual.

Public officials in Maine, as well as in many other states in light of ongoing litigation on religious freedom in education beyond the scope of this discussion, seemingly believe in “respect for me but not for thee” as they demonstrate no sense of compromise or respect when it comes to treating the beliefs of people of faith equitably. Instead, ideologues appear to be working to create situations where one can only wonder whether they are even willing to afford religion a place in the diverse marketplace of ideas, particularly in education. Based on the litigation in St. Dominic Academy, it does not appear that secular progressives are willing to respect the First Amendment rights of parents and educators to religious freedom if the latter do not comply with their decrees.

As St. Dominic Academy wends its way through the judicial system, any fair-minded jurist with a who reads Trinity Lutheran, Espinoza, and the original Carson should have little choice other than to rule in favor of the educators and parents. The plaintiffs should prevail because public officials are unmistakably seeking to place an undue burden on their First Amendment rights to religious freedom without a compelling interest justifying their efforts, a difficult standard for state authorities to prove. Hopefully the judiciary will rectify this overreach by Maine officials by protecting religious freedom in education so that parents can have their young educated in accordance with their wishes, not the dictates of bureaucrats seeking to impose their own woke agendas by essentially engaging in “social experiments on other people’s children.”

(Editor’s note: Becket Fund for Religious Liberty has not changed it name, as an earlier version of this essay stated.)