Religious schools claim Maine’s anti-discrimination law creates ‘chilling effect’

Two religious schools from Maine argued in federal court on Tuesday against the state’s anti-discrimination law, which they say infringes on their constitutional right to free exercise of religion.

To what extent Maine can allow religious schools to follow their practices — many of which uphold traditional Christian values and can be inherently exclusionary to LGBTQ+ students or students practicing other religions — while protecting the rights of all students will be determined by federal judges in the coming months.

“Can a state that has an anti-discrimination law make that apply to everyone, or are religious organizations going to get an exemption from that?” asked Christopher Taub, Maine’s deputy attorney general who is representing the state in the trial.

“Most people, most taxpayers, would not want their funds to be used for purposes of discrimination. And so the question is, can states stop that from happening or not? And I think the decisions that we get in these cases might help answer that.”

Appellants say Supreme Court precedent protects against exclusion

Crosspoint Church, which runs Bangor Christian Schools, and St. Dominic Academy in Auburn appealed in separate cases heard back-to-back in the United States Court of Appeals for the First Circuit in Boston.

Citing several Supreme Court decisions, including one in 2022 that allowed religious schools to be eligible for public funds, they said the state’s educational nondiscrimination provisions create what they described as a “chilling effect,” that in effect exclude religious schools from a state program that allows private schools to receive public education funding in cases where mostly rural students without a local public school can opt in to another school or district.

“The First Amendment actually does protect religious organizations from the very activity that the state of Maine is trying to impose upon them,” said Jeremy Dys, attorney for Crosspoint Church from the First Liberty Institute, a national religious freedom organization. “What we want is not to be penalized for the exercise of religious beliefs.”

Both appellants asked for a reversal of a 2024 U.S. District Court decision to allow Maine to apply its Human Rights Act — which prohibits discrimination on the basis of protected classes, including race, color, sex, sexual orientation (which includes gender identity and expression), among other categories — to all K-12 private schools accepting public funds.

Neither school has applied for the program because they said doing so would allow the state to scrutinize their religious practices.

For example, under the Maine Human Rights Act, Bangor Christian Schools’ practice of not admitting gay or trans students, or expelling students for premarital sex, would violate the law. For St. Dominic’s, it would mean if a student who refuses to pray three times a day or attend mass is denied admission, that student could seek protection by filing a complaint with the Maine Human Rights Commission. Also, teachers wouldn’t be able to say that their faith does not allow them to use students’ preferred pronouns, or they risk being investigated under the Maine Human Rights Act, according to Adele Keim from Becket, the law firm representing St. Dominic’s that fights religious liberty cases.

“Non-discrimination law is important for everybody,” she said. “But as important as it is, it can’t be used to deprive religious believers of their rights.”

If the appeals court does not rule in favor of the religious schools, Dys said the case may have to return to the U.S. Supreme Court, which currently has a conservative majority, “if that’s what it takes to make sure that these religious organizations are treated fairly and equitably.”

State argues cases are premature

The state of Maine argued Tuesday that the cases are premature, since neither religious school that appealed has yet applied for funding and so does not know exactly how Maine’s anti-discrimination law would impact their practices.

It is also possible to comply with state law as a religious school, Taub said, as evidenced by Cheverus High School in Portland, which has been approved to accept public funds for students for years, and has not had to face any complaints or investigations.

One of the arguments appellants focused on was the general applicability of the law, which came under question since Maine also allows rural students to choose out-of-state private schools, which Keim pointed out don’t have to adhere to Maine’s Human Rights Act.

However, out of the 4,500 students statewide that use the tuition reimbursement program, only two go to out-of-state schools, Taub said. Since Maine does not have jurisdiction over other states, it can’t apply its nondiscrimination law to those institutions that receive tuition from Maine municipalities, regardless of whether those schools are religious.

Finally, it is possible to strike down part of the Maine Human Rights Act that could be seen as stifling religious freedom without allowing religious schools to be completely exempt from following the law, Taub said. That would mean religious schools can reject students based on whether or not they align with the school’s beliefs, but they would not be able to reject a student on the basis of sexual orientation or gender, for example.

“This particular provision that talks about allowing religious expression, if the court thinks that’s problematic, instead of breaking down everything, it could just strike down that one provision,” Taub said.

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