Religious discrimination disguised as anti-discrimination

NICK EICHER, HOST: Coming up next on The World and Everything in It: blocking benefits.

Back in 2022, the Supreme Court struck down a law in the state of Maine. It specifically barred sectarian schools from a state program that provided tuition assistance. The specific program was for families in rural areas where no public high school existed. In Carson v. Makin, the court ruled that the law ran afoul of parents’ free exercise of religion, because it had different standards for religious and nonreligious parents.

MYRNA BROWN, HOST: Case closed, but the issue is ongoing. A federal judge recently ruled that the state can continue to deny tuition benefits to most religious schools.

Joining us now to talk about it is WORLD legal reporter Steve West.

Steve, good morning.

STEVE WEST: Good morning, Myrna.

BROWN: Steve, this ruling seems to flout the Supreme Court’s prior decision. What’s going on here?

WEST: Well, you know, legislators here clearly have an objective. It's not they say that the schools are religious. It's that they don't support the state's viewpoint on gender and sexuality. Ostensibly, religious schools can be accredited and receive tuition funds from parents, but only if they agree not to discriminate in hiring or admissions on the basis of sexual orientation or gender identity. They also have to allow equal time for all religious expressions.

BROWN: So how did this case arise?

WEST: Keith and Valori Radonis are Roman Catholic. They'd like to send their children to a Catholic school, one that affirms the beliefs and values they've taught them at home. St. Dominic Academy is a Catholic school, but it's not accredited because the school can't agree to the unbiblical demands the state is making—demands that would change the very character of the school. But maybe it's better to hear it directly from the Radonises in this excerpt of a Fox News Interview in June:

KEITH: You know, as a parent, you want to provide the best for your child. You want to give them, you know, every key you can to unlock the door to success, no matter how big or small that door is, and and I think that that's a right every parent in Maine has, and so having—

VALORI: One size doesn't fit all right. And so being in a rural area where we have, we have choices, you know, we can, we can fit each child—dependent on their needs—with the right school, the best choice for them, and when the state closes down options, I don't, you know, that's not, it's not right.

BROWN: Okay, so, Steve, what are the arguments here?

WEST: Well, the state is saying, “Look, this is a neutral law. It doesn't target religious people or schools, is also generally applicable, meaning it applies, without exception, to all schools. All of them have to follow anti-discrimination guidelines. That being the case, the court needs to defer to what legislators think is best.” It's a minimal standard, very deferential, and almost always means the government wins.

BROWN: Well, what about the parents and the school?

WEST: The parents are represented by Adele Keim, an attorney with the Becket Fund for Religious liberty. When I talked with her recently, she had a different view. She said this was neither a neutral law nor a law that was generally applicable. For the state to prevail, this means the court has to strictly scrutinize the law if it substantially burdens religious exercise. This has to be one of those rare instances where the government's interest is compelling enough to overcome the constitutional right to free exercise of religion. The state also has to have used the least restrictive means to accomplish its objective.

BROWN: And it doesn’t pass the test, right?

WEST: That's right. It isn't neutral, she said, because the state targeted religious schools. She pointed to statements by Maine Attorney General, Aaron Frey, issued after the Supreme Court ruling in Carson, where he publicly stated that the state would explore ways to continue to enforce the state's anti-discrimination objectives. He said, “They promote a single religion to the exclusion of all others, refused to admit gay and transgender children and openly discriminate in hiring teachers and staff.”

It isn't generally applicable, Keim said, because parents can use the tuition assistance at schools outside the state, in Canada or really anywhere in the world, even though the state can't enforce its anti-discrimination guidelines in those places.

BROWN: Okay, so those are the arguments. How did the court rule?

WEST: Well, the judge agreed with the school and the parents that the law wasn't generally applicable. There were exceptions, and so the law had to be strictly scrutinized. But he said this is one of those rare times when the state's interest is compelling enough to overcome the constitutional right. So bottom line: anti-discrimination—really, the state's view of gender and sexuality—trumps religious liberty.

BROWN: Steve, what does this mean for Maine parents?

WEST: Well, if you live in a rural area with no public high school, you can't use your tax dollars to send your children to a school where their faith will be reinforced. You have to pay the full tuition to do that. It's exactly the same result that the Supreme Court struck down in Carson v. Makin. You know, ironically, it's religious discrimination under the guise of anti-discrimination.

BROWN: So what happens now? Is there any hope for parents like the Radonises?

WEST: Well, it may be a long road, but I think so. Because this case has been appealed, the federal appeals court and possibly the U.S. Supreme Court will have to reckon with whether anti-discrimination—or at least the state's view of what that is—is more important than one of our first freedoms, religious liberty. There's a lot at stake here, not just for this Maine family, but for all religious families.

BROWN: Right. Well, Steve West is a legal reporter for WORLD and editor of the weekly Liberties newsletter. Steve, thanks for this report.

WEST: My pleasure, Myrna.

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