Private religious schools that receive public funds must follow state laws that prohibit discrimination based on gender identity, sexual orientation or religion, a federal court ruled last week.
The ruling from the U.S. Court of Appeals for the First Circuit in Boston came after two schools 鈥� Saint Dominic Academy in Auburn and Bangor Christian Schools, run by Crosspoint Church 鈥� asked for exemptions from the Maine Human Rights Act so they wouldn鈥檛 be required to enforce policies that contradicted their religious beliefs, such as admitting students who were openly gay or transgender, for instance, or requiring teachers to use students鈥� preferred pronouns.
The appeals court largely upheld a lower court鈥檚 decision denying this exemption, but it differed in its opinion of the state鈥檚 rules around religious expression and asked that the lower court reconsider how that provision applies to religious schools.
Maine has long allowed students who live in towns that do not have public schools at their grade level to attend approved private schools at the state鈥檚 expense, requiring the towns to pay a student鈥檚 tuition up to a certain amount. Religious schools were excluded from this town tuitioning program from 1981 until 2022, when the U.S. decision that limiting the program to nonsectarian schools violated the First Amendment鈥檚 religious liberty protections.
While the case was making its way through the courts, the state Legislature amended the Maine Human Rights Act to explicitly prohibit discrimination on the basis of gender identity and religion in education. It also clarified that an exemption allowing religious schools to discriminate based on sexual orientation only applied to those that weren鈥檛 receiving public funds.
Saint Dominic Academy, which is Catholic, and Crosspoint Church, which is evangelical, challenged these changes in the U.S. District Court for the District of Maine in 2023, arguing that the state鈥檚 antidiscrimination rules were not 鈥渘eutral toward religion鈥� and violated their First Amendment rights to create school policies based on religious identity. Both schools described the amendments to the Maine Human Rights Act as a 鈥減oison pill鈥� meant to exclude religious schools from receiving public dollars in anticipation of the Supreme Court ruling against the state.
Crosspoint argued that following the Maine Human Right Act would force Bangor Christian Schools to admit students with 鈥渟exual orientations, gender identities, or religious views inconsistent with its central religious tenets,鈥� and that the school would then need to expel these students if they did not follow the schools鈥� policies on these issues.
Saint Dominic Academy argued that the state鈥檚 laws would require it to facilitate a student鈥檚 gender transition over the objection of their parents and 鈥渄iscipline other students and staff who object to using a student鈥檚 preferred pronouns 鈥� even if this contradicts the school鈥檚 religious mission.鈥�
In 2024, a U.S. District Court judge denied both schools鈥� requests, finding no constitutional violations in how the state implemented its antidiscrimination laws, which the judge said were applied neutrally regardless of religion.
Last week, the appeals court issued decisions in both cases that largely upheld the lower court鈥檚 findings. A bulk of the reasoning was provided in the 108-page Saint Dominic opinion. The court ruled that private religious schools receiving public tuition assistance cannot discriminate against students on the basis of gender identity or sexual orientation, nor can they give preferential treatment to students of a particular faith in the admissions process.
鈥淛ust as combatting religious discrimination qualifies as a legitimate governmental pursuit, so too combatting sexual-orientation and gender-identity discrimination rises to that level,鈥� the court found.
The schools had also argued that the Maine Human Rights Act鈥檚 provisions on employment practices violated their constitutional rights. But judges pointed out that carveouts in the law allow religious schools 鈥� even those that receive public funding 鈥� to hire only members of their own faith or ensure that employees conform to their religious tenets, including teachings on sexual orientation and gender identity. Those carveouts mean there鈥檚 no current conflict between the schools鈥� hiring practices and state law, the judges wrote.
While religious schools that receive public funding cannot limit admission to students of a particular faith, requiring that students attend religious services and agree to uphold the school鈥檚 mission 鈥� which includes upholding Catholic morals in Saint Dominic鈥檚 case 鈥� does not violate current state law, the court found.
Judges sent one issue back to the lower court, arguing that the schools were justified in challenging the Maine Human Rights Act provision that forbids schools from discriminating between religious practices.
Under the current law, the court found, religious schools that receive public funding would be required to make equal space for alternative faith backgrounds, such as allowing students to recite the Hindu Hare Krishna mantra when teaching the Christian Lord鈥檚 Prayer.
鈥淎nd while such an example may seem fanciful,鈥� the court wrote, 鈥渢he point is that the Religious Expression Rule would inevitably interfere with a religious school鈥檚 ability to foster an expressive environment consistent with its religious mission.鈥�
Ad猫le Keim, an attorney with The Becket Fund for Religious Liberty who is representing Saint Dominic Academy, said the court鈥檚 findings on employment practices and religious expression were wins for the school, but described it as 鈥渞idiculous鈥� to suggest a Catholic school couldn鈥檛 give parish members preference in admissions. The First Circuit also 鈥渟tuck their finger in the eye of the U.S. Supreme Court鈥� by finding Maine鈥檚 application of gender identity antidiscrimination policies constitutional, Keim said.
Jeremy Dys, senior counsel at First Liberty Institute representing Crosspoint Church, said in his view the First Circuit opinions allow Christian schools to teach what they believe but refuse to give them the freedom to require conduct consistent with those beliefs.
鈥淲e鈥檙e looking at all the correct options right now for our client in response to this opinion,鈥� Dys said. 鈥淐ertainly an appeal to the Supreme Court may become necessary.鈥�
Keim said her team is 鈥渟till digesting the decision鈥� but did not rule out the possibility of an appeal.
The Office of the Maine Attorney General, which represented the state in the case, declined to comment.
The American Civil Liberties Union of Maine, which filed briefs in the cases, on Monday, saying all schools that receive state funding should 鈥減lay by the same rules.鈥�
The U.S. Supreme Court is already set to hear a similar case this fall. The whether a Colorado law requiring preschools to comply with an equal opportunity requirement to receive public funding violates the Supreme Court鈥檚 2022 ruling in Carson v. Makin, the Maine case where the court found that the state鈥檚 requirement that schools be nonsectarian to receive public tuition assistance was unconstitutional.
The court鈥檚 ruling in the Colorado case could have a significant impact on the Maine cases, said Alex Luchenitser, an associate vice president and associate legal director at Americans United for Separation of Church and State, a nonprofit organization that joined briefs in favor of Maine in the two First Circuit cases.
In recent years, the Supreme Court has repeatedly ruled in favor of religious interests in education cases. This year, the challenging a California law that bars schools from telling parents about their children鈥檚 gender transitions without consent. Last year, the court ruled in that parents had a right to opt out of instruction that violated the families鈥� religious beliefs. The case revolved largely around storybooks with LGBTQ storylines.
Luchenitser said the Supreme Court has shown a willingness to chip away at laws that bar religious schools from receiving public funding, which he said could result in taxpayer dollars being used to support institutions that discriminate based on their beliefs.
鈥淎s a taxpayer,鈥� Luchenitser said, 鈥測ou鈥檙e being forced to subsidize discrimination against other people, including possibly discrimination against a group that you鈥檙e a member of.鈥�
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