Last term, in Carson v. Makin, the United States Supreme Court ruled 6-3 that Maine could not prevent parents from using otherwise generally available state school choice funds at religious schools simply because those schools provided religious instruction. But the state is back at it again, discriminating against families and the religious schools they want to send their kids to.
Crosspoint Church, which operates the Christian school that two of the Carson plaintiffs attended, is suing Maine state officials in response to a law that, once again, tries to keep private religious (or “sectarian”) schools from receiving tuition assistance program funds, this time by adding an eligibility requirement that they must comply with the state’s LGBT anti-discrimination policy.
The Pine Tree State just can’t seem to take a hint.
Maine does not operate public schools in every town, particularly in rural far northern Maine, but students must still attend K-12 schools. That means that in many cases, religious schools are the only option available for families looking for a quality local education.
For the first 100 years of its tuition assistance program, the state allowed families and children to choose any school using tuition assistance dollars—whether the schools were public or private, religious or secular.
But in 1981, the state enacted a new restriction: Any school receiving tuition assistance payments had to be “nonsectarian,” having no “religious practice” involved. A school could be named after a patron saint of the Catholic Church, for example, but teachers could not celebrate those ideas or even add value-laden concepts into the school curriculum.
In separating schools that were religious in name only from schools that actually practiced religion, lawmakers thought they could keep “truly” religious schools from accessing publicly available funds.
The plaintiff families in Carson v. Makin argued that the state program’s “nonsectarian” requirement violated the U.S. Constitution by discriminating against religion, and last year, the Supreme Court agreed.
The court relied on its decisions in Trinity Lutheran Church of Columbia v. Comer (2017) and Espinoza v. Montana Department of Revenue (2020) to perform a straightforward resolution of the case. In Trinity Lutheran, the court held that Missouri could not discriminate against otherwise eligible recipients of public benefits because of their religion. And in Espinoza, the court held unconstitutional a provision of the Montana Constitution that barred aid to a school “controlled in whole or in part by any church, sect, or denomination.”
In Carson v. Makin, the Supreme Court determined that when private individuals use taxpayer funding to choose a religious K-12 school for their children, those individuals are not using public money to “establish” a religion—something that would be prohibited under the First Amendment to the Constitution. They’re simply making the best educational choice for their children.
Less than a year later, Maine education officials are back in federal court.
Following the Supreme Court’s decision in Carson, Maine Attorney General Aaron Frey released a statement saying he was “terribly disappointed and disheartened” by the outcome. What’s more, Frey stressed that religious schools were still ineligible for the tuition program because of their religious stance on sexuality and gender—positions that he called “fundamentally at odds with values we hold dear.”
Frey promised to explore with “members of the Legislature statutory amendments to address the Court’s decision and ensure that public money is not used to promote discrimination, intolerance, and bigotry.” It was clear that to keep discriminating against religious schools, the Maine Legislature would need to get creative.
The outcome of Frey’s promised “exploration” was a law requiring academic institutions participating in the state’s school choice program to adhere to the Maine Human Rights Act, which prohibits discrimination on the basis of sexual orientation and gender identity.
Originally, all religious schools were exempt from the nondiscrimination provisions in the Human Rights Act to accommodate their religious beliefs. But in anticipation of Carson, the Maine Legislature narrowed the religious exemption in the Human Rights Act to protect only religious schools that do not participate in the tuition program.
Without an exemption from the LGBT discrimination provisions, religious schools can face investigations, complaints, and fines for teaching students in accordance with their sincerely held religious beliefs on sexual orientation and gender identity.
In its case on behalf of Crosspoint Church, public interest law firm First Liberty Institute calls the narrowed exemption a “poison pill” that deters religious schools from participating in the tuition assistance program and perpetuates the exact religious discrimination that the Supreme Court had already determined was unconstitutional.
In addition, the lawsuit points to a tweet by then-state House Speaker Ryan Fecteau in which he said that he’d “anticipated the ludicrous decision from the far-right [Supreme Court].” Fecteau stopped just shy of saying that in Maine’s search for ways to continue discriminating, they’d had a head start.
The law is on Crosspoint’s side. Not only has the Supreme Court already struck down the tuition program once for being unconstitutional, it has also clarified that a “government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature.”
The statements of government officials Frey and Fecteau are nothing if not intolerant.
Apparently, one lawsuit wasn’t enough to deter Maine from religious discrimination. Maybe this time, it will take the hint.
Sarah Parshall Perry@SarahPPerry
Sarah Parshall Perry is a senior legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. Original here.