Religious Freedom, Maine Anti-Bias Law Clash at First Circuit

A panel of First Circuit judges appeared troubled by Maine’s bid to apply educational and employment antidiscrimination laws to religious schools receiving public funding during oral arguments Tuesday in light of US Supreme Court precedent.

The First Circuit heard two cases dealing with the fallout of the high court’s 2022 decision in Carson v. Makin that Maine can’t leave religious schools out of its state tuition-subsidy program, which covers private school tuition for students without access to public schools.

Maine schools that accept public funds must comply with the state’s Human Rights Act. Religious organizations receiving funding were exempted from the state’s ban on gender or sexual orientation discrimination until the law was amended in 2021.

“We know as a starting point that, because of the prior Supreme Court decision, the state can’t say we’re not giving you funds because you’re a religious school,” Judge William Kayatta said during oral argument at the US Court of Appeals for the First Circuit. If a private religious school’s mission is to proselytize the adoption of a certain set of beliefs, and the state says you can’t do that if you get funds, that “seems to be almost equivalent” to the reasoning the Supreme Court axed in Makin, Kayatta said.

Christopher Taub, chief deputy attorney general for Maine, said “our law does not prohibit schools from acting like religious schools.” They’re still free to teach “that God created only two genders and that marriage is only marriage between a man and a woman,” Taub said.

What the Human Rights Act does mandate is that “if there’s a gay student for example, who wants to receive that teaching, you can’t preclude them simply because they’re gay,” Taub said.

Taub tried to convince the judges that challenges brought by Crosspoint Church, which runs Bangor Christian School, and St. Dominic Academy, a Catholic high school in Auburn, Maine, are premature because there isn’t an “imminent risk” that they’ll be penalized for violating the Human Rights Act.

Tiffany Bates, an associate for Consovoy McCarthy PLLC who represents Crosspoint, pushed back on that idea. “I don’t think we have to wait to find out” whether the law is unconstitutional and risk being penalized hundreds of thousands of dollars, especially when the state has said it believes “our beliefs are bigoted and discriminatory.”

“You still need to have a student to apply and be not accepted” to have a ripe case, Judge Lara Montecalvo told Bates, who responded that both the First Circuit and the Supreme Court have rejected that argument and proceeded to the merits.

Adele Keim, senior counsel for Becket who represents St. Dominic, said she was frustrated by Maine’s “gamesmanship.”

“This is all fun and games for the state, they can play this forever, they have attorneys on the payroll,” Keim said. “But I have clients whose daughter is going to graduate in two years” and “admissions season is coming up.” Keim said she has clients “working three jobs to send their kids to St. Dom’s, and they are entitled to the state’s benefit.”

Judge Bruce M. Selya was also on the panel.

The cases are Crosspoint Church v. Makin, 1st Cir., No. 24-1590, oral argument 1/7/25 and St. Dominic Academy v. Makin, 1st Cir., No. 24-1739, oral argument 1/7/25.