We don't want your kind.
Over the past few years, the Supreme Court has, step by step, broken large holes in the wall between church and state when it comes to education. Now a lawsuit in Maine proposes to shatter a few more bricks.
Carson v. Makin spun from a peculiarity of Maine education law. Because not all small towns in Maine can afford to run their own school system, the state allows for vouchers for students from one community without a school to attend in a community that has one. But the law restricted the use of those vouchers to schools that did not venture outside the traditional, secular model. Lower courts agreed that “Maine’s tuition program does not act as a penalty for religious exercise, it merely declines to subsidize it.”
In June of 2022, the Supreme Court disagreed, saying that if the state paid for a secular school option, it must also pay for the religious version. Like other cases in this sequence, the decision seemed to elevate the free exercise clause of the First Amendment over the establishment clause.
In his dissent, Justice Breyer points some possible outcomes:
What happens once “may” becomes “must”? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education? What other social benefits are there the State’s provision of which means—under the majority’s interpretation of the Free Exercise Clause—that the State must pay parents for the religious equivalent of the secular benefit provided?
If lack of state funding is, as Roberts asserts, discrimination against a religion, exactly who will decide the conditions of religious equity in the eyes of the state? As Breyer points out, “Members of minority religions, with too few adherents to establish schools, may see injustice in the fact that only those belonging to more popular religions can use state money for religious education.” How is the state expected to resolve such “discrimination”?
Justice Sotomayor offered the last word on this new shift:
In 2017, I feared that the Court was “lead[ing] us . . . to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.” Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.
But while the case marked a shift in governing philosophy in the United States, on the ground in Maine, it had little real effect. That may be about to change.
The brief for Carson v. Makin provides a closer look at the two private schools involved which helps illustrate the stakes. Bangor Christian Schools require adherence to a code of conduct; trans or gay students will be expelled, even if celibate. Their religious indoctrination is inseparable from their academic instruction. A fifth grade social studies objective is to “recognize God as Creator of the world,” while a ninth grade objective is to “refute the teachings of the Islamic religion with the truth of God’s word.” Teachers at BCS must certify that they are born again Christians.
The schools named in the suit have said that they will not accept taxpayer funding if accepting those dollars would require them to stop discriminating. And in fact, Maine got ahead of the Supreme Court by passing an amendment to the state’s anti-discrimination law expressly forbidding certain types of discrimination by any school that accepts public funds.
And that brings us to the new lawsuit.
Bangor Christian Schools is now suing the state of Maine, asking first for an injunction against the Maine Human Rights Act (MHRA) restriction that bars them from receiving state money as long as they continue to discriminate. Their assertion is that the “poison pill” of human rights law in Maine violates their religious liberty, that they cannot exercise that liberty unless they can both receive state funds and continue to discriminate against students and prospective faculty that don’t meet their religious requirements.
The lawsuit rests its argument on several major points. For three reasons, it argues, the poison pill violates the free exercise clause. First, the state amended its human rights laws specifically to target the religious schools. Second, that the law is not “generally applicable because it exempts single-sex schools.” Third, that the “poison pill” does not satisfy “strict scrutiny,” arguing that the state has no “compelling interest in penalizing religious schools’ pedagogical model for the sake of ‘nondiscrimination’ if” the law doesn’t also apply to same-sex schools.
The suit also argues that applying the MHRA to keep the school from employing only “co-religionists” violates establishment and free exercise clauses. Teachers at Bangor Christian Schools are required to practice religion that aligns with the school’s beliefs. Religious employers, the school argues, are allowed by the law to require all employees be believers without it counting as unlawful discrimination.
The suit also draws in Kennedy v. Bremerton, the case in which the Supreme Court found in favor of the high school coach who led prayers at the 50 yard line after games.
Attorney General Aaron Frey said that "all Mainers deserve to be treated with dignity and respect, whether it be in their workplace, their housing, or in their classrooms. The Maine Human Rights Act is in place to protect Mainers from discrimination and the Office of the Attorney General is steadfast in upholding the law. If abiding by this state law is unacceptable to the plaintiffs, they are free to forego taxpayer funding."
The case is being handled by First Liberty Institute and Convoy McCarthy PLLC. First Liberty is a Christian conservative firm based in Texas; they are the same firm that took both Makin and Kennedy all the way to the Supreme Court. That suggests that folks who follow church-state legal cases may be following this suit for a while.
