Maine orchestrates back door attack on religious schools

A Maine Christian school filed a lawsuit last week to stop the state government from maneuvering around religious liberty protections established by the Supreme Court.

Last year, the Supreme Court ruled that Maine could not exclude religious schools from its rural tuition program. The program allows school districts that do not have their own high schools to pay tuition for local students to attend either a private high school or a public high school in another district. Bangor Christian School, founded in 1970, participated in the program until 1981, when the state amended the law to require that participating schools be nonsectarian.

In its Carson v. Makin decision last year, the Supreme Court agreed with three families—including two whose children attend Bangor Christian—that Maine’s sectarian exclusion violated the free exercise clause of the First Amendment.

Undeterred, Maine pressed ahead—even during the Carson litigation—enacting what challengers have dubbed a “poison pill” by amending the state’s Human Rights Act to add gender identity and religion as protected classes and narrowing the preexisting exemption for religious schools. State law now excludes religious schools from the tuition program unless they agree not to discriminate in hiring and admissions on the basis of sexual orientation or gender identity.

That means Bangor Christian School is ineligible because of its statement on marriage and sexuality. It describes marriage as only between one man and one woman. Parents who enroll their children must agree to allow the school to educate their child in line with the statement of faith and practice, including the belief that “any other type of sexual activity, identity or expression that lies outside of this definition of marriage … are sinful perversions of and contradictory to God’s natural design and purpose for sexual activity.”

In its March 27 lawsuit, the school challenged Maine’s backdoor attempt to get around the Supreme Court’s decision.

“What that means is that now a religious school cannot teach from its own religious perspective,” said First Liberty Institute attorney Lea Patterson, who represents the school. “Punishing religious schools for living out their religious beliefs is not only unconstitutional, it is wrong.”

Patterson also pointed to an exception in the law for single-sex schools, noting that when the government exempts one category of persons or entities from a law, it becomes subject to strict scrutiny, the court’s highest level of review. And as the complaint contends, Maine does not have a compelling reason to exclude religious schools with Biblical beliefs on marriage from the program—just a disagreement with its religious views.

In a press release issued the day Carson v. Makin was decided, Maine Attorney General Aaron Frey criticized the instruction provided by Bangor Christian as “inimical to a public education.” He deplored the Supreme Court’s ruling as promoting intolerance and bigotry. “[These schools] promote a single religion to the exclusion of all others, refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff,” Frey said.

Help for religious schools and parents won’t come by legislative or executive action. The Democratic Party controls the offices of governor, secretary of state, attorney general, and both chambers of the state legislature. It supports adding gender identity and sexual orientation to nondiscrimination provisions.

Along with the complaint, school attorneys filed a motion asking the court to block the state from enforcing the law until the lawsuit is resolved. While no hearing has been scheduled on the motion, Patterson said the court generally schedules a hearing as soon as practical—meaning, a ruling could come well before the bell rings on the next school year.

For many Christian parents in rural Maine trying to decide where their kids will attend school this fall, it can’t come too soon.