Maine Christian schools persist in defense of religious rights

Two religious schools in Maine asked the 1st U.S. Circuit Court of Appeals last Tuesday to allow them to participate in a state tuition assistance program. The lawsuits challenge a state law that maneuvers around a 2022 Supreme Court ruling in favor of one of the schools.

Bangor Christian Schools (BCS) in Bangor and St. Dominic Academy in Auburn filed two separate lawsuits challenging a state anti-discrimination law that prevents them from practicing their religious beliefs if they want to participate in the tuition program.

Maine’s program, which is the second-oldest plan of its kind in the country, provides families in rural areas with funds to attend private schools when no public options exist nearby. In 1982, Maine amended the program to exclude religious schools from participating. Four decades later, a six-justice majority from the U.S. Supreme Court struck down the ban in the 2022 case Carson v. Makin, which BCS parents brought against the state. The high court found that Maine’s policy violated the parents’ First Amendment right to religious exercise.

However, the Maine Legislature then added a new anti-discriminatory requirement for schools to receive tuition assistance. The law, which challengers dubbed a “poison pill,” prohibits schools from participating in the program if they refuse to hire or admit someone on the basis of religion, sexual orientation, or gender identity.

BCS and its parent church, Crosspoint Church, filed a suit against the law in March 2023. Three months later, the Roman Catholic school St. Dominic, along with a family whose children attend it, filed their own complaint.

BCS argues in its suit that Maine’s law forces it to violate sincerely held religious beliefs or face hefty fines. The school claims Maine Attorney General Aaron Frey targeted it with the law. In a 2022 news release regarding Carson’s ruling, Frey said BCS’s education was “inimical to a public education.”

St. Dominic’s complaint contends that the law hurts families that rely on the school for education. Parents Keith and Valori Radonis value St. Dominic’s religious-centered curriculum, according to the complaint, but have faced financial strain due to tuition fees since the new law.

The U.S. District Court for the District of Maine struck down requests for a temporary preliminary injunction against the law from BCS in February 2024 and St. Dominic’s in August. Both schools appealed to the 1st Circuit.

Last week, a panel of three judges for the 1st Circuit weighed the arguments for both cases in two separate oral arguments.

BCS attorney Tiffany Bates opened the arguments by telling the judges that “BCS has the right to exercise its beliefs about sexuality and gender even if the state finds those views distasteful.”

Bates explained that Maine’s law fails the test of general applicability as it is not equally applied to all schools. “Maine’s interest, it is stated, is to make sure that public funds don’t go to promoting discrimination, yet they have not required schools outside the state to abide by those anti-discrimination laws,” she said.

The judges heavily questioned this argument, asking Bates to explain how general applicability should be defined in this case.

Representing Maine, Chief Deputy Attorney General Christopher Taub claimed the state’s law doesn’t tell the schools to stop expressing their religious messages.

Circuit Judge William J. Kayatta Jr. pushed back against this argument. “If they do that, under the law, it comes with a price,” he said. “They must then allow expression of religious indications from others in the school that don’t jive with what the school is propagating.”

Kayatta questioned Taub on the extent of the law, asking if religious schools could be punished if they prohibited students from starting a pro-choice club. When Taub said they likely could, Kayatta replied, “Doesn’t that create sort of a chilling problem?”

Adèle Keim, senior counsel at Becket Fund for Religious Liberty, represented St. Dominic. She pointed out that Maine’s law fails general applicability because it favors some schools over others. She cited an out-of-state all-girls school that receives funds from Maine but is excluded from the anti-discriminatory law. If it were included in the law, it would be ineligible to receive funds because it accepts only one gender, she said.

Keim urged the judges to see the people behind the case, adding that, while litigation is pending, some parents are working three jobs to be able to send their kids to St. Dominic. “They are entitled to the state’s benefit and the state is just playing this game in court and playing things out,” she said.

Judges asked Taub to clarify how Maine’s law affects these schools’ hiring practices.

“St. Dominic, regardless of whether it takes public funds, can require all of its employees to comply with its religious tenets, and it can require them to be members of the same religion,” Taub said. “If it takes public funds, the difference is going to be that it can no longer discriminate simply because of a person’s status. It can’t refuse to hire a person simply because the person is gay.”

Reflecting on the arguments to WORLD, Keim said the judges didn’t let Maine “explain its law away, but they really looked at what the text of the law actually would require.”

For instance, the law affects what clubs schools could and couldn’t allow, their hiring practices, and their overall religious expression, she said.

Keim anticipates the 1st Circuit will rule on both cases in the next few months. If the court grants the temporary ruling requests, the cases will go back to the lower district court where a final ruling will be determined—now under the protection of the 1st Circuit, she said.

If its case fails here, St. Dominic would likely appeal to the U.S. Supreme Court, she noted.

“[A religious school’s] whole mission is to share and express and teach kids how to live out your religious faith,” Keim said. “Maine weaponizes human rights law to make it really impossible for religious schools to continue to carry out their mission.”