Remember Maine

While the president’s recent dust up with Maine Gov. Janet Mills makes for great political theater, it also exposes the genuine threat to religious liberty facing parents, students, and religious institutions across the country—especially in Maine itself.

In a moment that went viral from the White House, during a meeting with the nation’s governors, the president and the governor exchanged barbs. President Trump encouraged the assembled governors to weed out the last vestiges of DEI and similar policies that end up working discrimination against the nation’s students. Gov. Mills attempted to defend her political position by limply pointing to her intent to follow state and federal law.

That gave the president all the room he needed: “We are federal law,” he shot back, referring to the several executive actions taken by the White House to curb out-of-control actions by state officials to promote “diversity,” especially in the school context. Gov. Mills eventually retorted, “I’ll see you in court.”

But Maine is already there. Several years ago, our firm helped sue the State of Maine. As a rural state, Maine provides tuition grants to parents, allowing them to send their children to the school of their choice—public or private. Years ago, the state’s attorney general convinced the Maine Legislature to forbid such tuition dollars flowing toward private religious schools.

Of course, parents could use Maine’s tuition support program at nearly every other school—in state or out of state. Maine excluded only the religious schools. Eventually, the Supreme Court of the United States invalidated that practice as unconstitutional in Carson v. Makin. Even as the Supreme Court extended its reasoning from Trinity Lutheran v. Comer and Espinoza v. Montana, Maine’s attorney general and legislature were creating a new obstacle to religious freedom.

They decided that any school that participates in Maine’s tuition support program would be required to comply with Maine’s nondiscrimination laws. The state would not only rob religious schools, and the parents of Maine, of the fruit of their victory in Carson v. Makin, it would put them to the choice: Bow to the preferred ideology of the state or abandon any access to tuition dollars available to every other Mainer.

Here’s where our lawsuit meets President Trump’s confrontation with Gov. Mills. The same political insistence that Mainers bow to the preferred ideology of the state applies to our clients, a church and religious school, as it does to Maine parents who overwhelmingly reject policies that permit men to participate in women’s sports.

Gov. Mills prefers that her state’s religious schools and parents abandon their religious convictions and adopt her preferred political ideology as gospel. President Trump, rightly, would put that choice in the hands of parents and the religious institutions they hope to support.

So, perhaps they will meet in court. In fact, while our case is pending before the U.S. Court of Appeals for the First Circuit, it is quite possible that Maine’s dogged defense of its unconstitutional position will force the case to the Supreme Court.

But then again, maybe President Trump will make that lawsuit entirely unnecessary. Perhaps the president’s continued executive actions offering robust protections for parental rights and religious freedom will moot Maine’s continued defiance of federal law and the Constitution. Or, perhaps Gov. Mills will relent, convincing the Maine legislature to respect the rights of conscience of the parents and religious institutions of her state.

Either outcome would be welcome. Families should be free to choose the educational option that works best for them, without the state’s unconstitutional interference. If the goal is a genuinely diverse society, then perhaps we ought to provide more access, rather than less, to religious education.