Maine Defies Supreme Court Ruling on School Choice: 'Punishing Religious Schools'

Last June, the U.S. Supreme Court ruled that Maine can't exclude religious schools from a program that offers tuition for private education in rural towns where there are no public schools.

In response, Maine Attorney General Aaron Frey criticized the Supreme Court ruling and said all schools that accept public funds, including religious schools, must abide by the Maine Human Rights Act, which bans discrimination on the basis of race, gender, sexual orientation, ethnicity, or disability. That would mean accepting gay and transgender teachers and pupils, he said.

That development has frustrated the families who sued.

"Their hands are tied. The state said you can take the money, but we'll tie your hands," said David Carson whose daughter was a sophomore at Bangor Christian Schools when his family and two other plaintiffs sued in 2018. 

In March, the frustration reached a boiling point when attorneys from First Liberty Institute and Consovoy McCarthy PLLC filed a lawsuit and motion for preliminary injunction in the U.S. District Court for the District of Maine. They're urging the court to halt the law Maine passed to prevent religious schools from participating in the state's school choice program due to their religious beliefs.  
 
The lawsuit was filed on behalf of Crosspoint Church which operates Bangor Christian Schools (BCS). It names the commissioner of the Maine Department of Education and the five commissioners of the Maine Human Rights Commission. 

"Maine lost at the U.S. Supreme Court just last year but is not getting the message that religious discrimination is illegal," First Liberty Institute Counsel Lea Patterson said in a statement. "Maine's new law imposes special burdens on religious schools in order to keep them out of the school choice program."

"Government punishing religious schools for living out their religious beliefs is not only unconstitutional, it is wrong," she added. 

Maine's tuition program is the second oldest school choice program in the nation. It allows parents who live in school districts that do not operate a high school to send their children to the public or private school of their choice. 

From 1980 until the Supreme Court's 2022 decision in Carson v. Makin, parents could not use their tuition benefit at a religious school. But in anticipation of the Supreme Court's decision, the Maine legislature changed the law to require BCS to violate its sincerely held religious beliefs in order to participate. 

"Representatives boasted days after the Supreme Court decided Carson that the Maine Legislature intentionally designed the poison pill to evade the Court's decision," according to the complaint. 

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The court document also includes a screenshot of a June 25, 2022 tweet from Santiago Meyer, executive director of the group Voters of Tomorrow. 

"You know how SCOTUS said Maine couldn't exclude religious schools from their voucher program?" Meyer wrote. "Maine just changed the guidelines to exclude schools that discriminate against LGBTQ+ students."

Maine House Speaker Ryan Fecteau replied to Meyer's tweet, writing: "Sure did. Anticipated the ludicrous decision from the far-right SCOTUS."

This "poison pill" imposes requirements that will prohibit BCS from teaching from its religious perspective or considering in admissions applicants' alignment with the school's statement of faith and religious educational mission, according to First Liberty Institute. 

According to the motion filed by attorneys, the "Defendants' enforcement of the Maine Human Rights Act to discriminatorily exclude Plaintiff, who operates an otherwise qualified school, from becoming approved for tuition purposes violates the Free Exercise, Establishment, and Free Speech Clauses of the U.S. Constitution."

In a commentary published by The Daily Signal, Sarah Parshall Perry, a senior legal fellow at The Heritage Foundation wrote, "The law is on Crosspoint's side. Not only has the Supreme Court already struck down the tuition program once for being unconstitutional, it has also clarified that a 'government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature.'"

"The statements of government officials Frey and Fecteau are nothing if not intolerant," Perry continued. "Apparently, one lawsuit wasn't enough to deter Maine from religious discrimination. Maybe this time, it will take the hint."