Funding

On Tuesday, a legal battle in Maine moved to the federal court of appeals in Boston, bringing a fight over public funding in religious schools one step closer to the United States Supreme Court. The question at the heart of both cases is, should private religious schools be forced to comply with Maine’s anti-discrimination statute in order to receive tuition vouchers covered by taxpayer dollars? In Maine, students who live in towns without public schools can receive tuition vouchers to attend a range of authorized private schools. Until a 2022 Supreme Court ruling, religious schools were excluded from the program to keep church and state separate. Now that they’re eligible, religious schools are required to comply with the same rules as secular private schools, which means they must follow the state’s anti-discrimination statute known as the Maine Human Rights Act. “Our view is if you take public funds, you should comply with the Maine Human Rights Act just like every other school,” said Chief Deputy Attorney General Christopher Taub, who’s representing the state of Maine. Two religious schools sued the state, arguing that the rules violated their freedom of religion. “Now the state of Maine says, if you want to participate in this program as a Christian school or religious school of any kind, you have to agree with what we believe is right, not with what your holy sacred scriptures teach is right,” said Jeremy Dys, an attorney representing Crosspoint Church which runs Bangor Christian Schools. On Tuesday, a panel of three federal judges heard two separate cases from Crosspoint Church in Bangor and St. Dominic Academy in Auburn. The schools are represented by First Liberty Institute and Becket Religious Liberty For All, respectively. Both non-profits provide pro-bono representation funded by donors looking to protect religious liberty. The Maine Department of Education and other state entities won both cases in the Federal District Court District of Maine, but both schools appealed. The state argues that the MHRA doesn’t limit the schools’ ability to exercise its’ religious freedom. “Crosspoint is not looking for equal treatment,” said Taub during oral arguments. “It’s not looking to be treated equally to non-religious schools. It’s looking for preferential treatment.”The United States’ Free Exercise Clause prohibits the government from either favoring or disfavoring religious groups. Attorneys for both schools say that following the statute would force them to act against their religious beliefs, claiming that the requirements are an attempt to exclude them from the program. “How much longer is the federal court going to put up with the gamesmanship?” asked St. Dominic Academy attorney Adele Keim during the proceedings. Keim says the statute would force them to act against their conscience, particularly in cases of gender identity and expression, forcing them to use a student’s preferred pronouns against their parent’s wishes. “The Maine Human Rights Commission commands religious schools to side with the kid against their own parents,” said Keim. “A Catholic school can’t do that. A Catholic school has to respect parents’ decisions about sensitive issues like that.”As of right now, neither Crosspoint nor St. Dominic Academy have applied for tuition benefits. They would have to agree to the MHRA in order to apply. Should they be found to be in violation of the statute, they could face $100,000 in fines. “Last year, they got calls every week from real families who were asking, can we please send our kids to your school? Can our tuition benefit be used there yet? So, we’re in this fight for those families,” said Keim. So far, one religious school has joined the program. Cheverus High School has been receiving tuition benefits for three years. “We’ve heard no complaints,” said Taub. “As far as we’re aware there are no issues.”Since these cases deal with fundamental constitutional rights, the outcome is likely to have broad national implications.”I think the broader issue is, if you have just, a neutral, generally applicable anti-discrimination law, can you apply that to everyone or are some organizations going to get an exemption from that?” asked Taub. During oral arguments, the judges asked a series of questions focused on whether the issue was “ripe” for litigation and whether the religious schools were being treated differently from other private schools. As for whether the case is “ripe,” the schools argued that although they haven’t been fined or forced to compromise their values, the mandate has created a chilling effect, preventing them from accepting tuition benefits. The judges seemed receptive to the argument, saying that they frequently offer advisory opinions in First Amendment cases when there’s a clear chilling effect. It could be several months before the panel of judges who heard these cases release their decisions, depending on how it goes, it could be appealed all the way up to the United States Supreme Court.