Church school loses bid for shield against Maine anti-discrimination law

US District Judge John A. Woodcock, Jr. issued an order on Feb. 27 denying Crosspoint Church’s motion to get a preliminary injunction against the enforcement of Maine’s anti-discrimination laws against the Church’s Bangor Christian Schools (BCS).

BCS would have to assume the obligation to comply with those laws — which ban discrimination in education or employment because of sexual orientation or gender identity — if it wants to participate in the state’s tuition reimbursement program.

This case is the next chapter in the ongoing story of how the State of Maine is trying to avoid spending taxpayer dollars to subsidize schools that have discriminatory admissions and employment policies, after the Supreme Court ruled in 2022 that the state could not exclude all religious schools from participation in the state’s tuition reimbursement program. The tuition program was established because there are areas in the state so thinly populated that some of the geographical “local school administrative units” do not have enough secondary school age students to support a secondary school. In such cases, the state will pay tuition for students residing within those units to attend other public schools or “approved private schools.” Sectarian schools were specifically excluded from the definition of “approved private schools” in this program.

In Carson v. Makin (2022), the Supreme Court ruled that a categorical exclusion of all religious schools from the tuition reimbursement program violates the First Amendment, because it was clearly discriminating on the basis of religion, so such schools would have to be approved on the same basis as secular private schools and public schools. While the Carson case was pending before the Supreme Court, the Maine legislature amended the Maine Human Rights Law to add several categories of prohibited discrimination, including gender identity. The law had previously been amended to include sexual orientation, at which time the legislature had specifically exempted education facilities “owned, controlled or operated by a bona fide religious corporation, association or society,” from having to comply with the ban on sexual orientation discrimination. With the Carson case then pending and the expectation that the Supreme Court would strike down the statutory exclusion of religious schools, the legislature modified the religious schools exemption language in the Human Rights Law to provide that it would only extend to a religious school “that does not receive public funding.”

In this new lawsuit, Crosspoint Church argues that this amendment was a “poison pill” by requiring them to drop anti-LGBTQ admissions and employment policies if it wanted to participate in the tuition program. The Church argued that the legislature passed this specifically to get around the Carson v. Makin decision and achieve indirectly what the Supreme Court said it could not achieve directly: categorical exclusion of religious schools — or at least those whose faith requires them to discriminate against LGBTQ people – from the tuition program.

Perhaps they will prevail in establishing this as the lawsuit proceeds, but in denying the request for a preliminary injunction, Judge Woodcock explained that he had concluded that Crosspoint was unlikely to succeed on the merits of its claim, which is a required finding in order to award preliminary relief.  He wrote that “the educational antidiscrimination provisions do not violate the Free Exercise Clause because they are neutral, generally applicable, and rationally related to a legitimate government interest.”  To Crosspoint’s contention that complying with the anti-discrimination provisions would amount to “compelled speech” in violation of First Amendment freedom of speech, Woodcock responded that the provisions regulate conduct, not speech, and that the employment provisions of the Human Rights Act “do not proscribe any constitutionally protected conduct.”

Crosspoint is represented by the First Liberty Institute, which takes its name from the order in which rights appear in the Bill of Rights of the Constitution. In the First Amendment of the Bill of Rights, the religion clauses are listed first, and are thus, in First Liberty’s view, the first in order of priority.  From the way the Supreme Court has been ruling in recent years, it appears that a majority of the Court has come to agree with that proposition.

However, Judge Woodcock concluded that at this stage of the litigation, and in light of existing precedents, it was not obvious that Crosspoint had a winning argument. He found that the legislature’s approach did not categorically exclude religious schools from the tuition program, so it did not directly violate Carson v. Makin, and that the state’s interest in avoiding subsidies to institutions that discriminate was a legitimate state interest. It is possible that Crosspoint’s schools could apply for the program and never encounter a situation where they were faced with a possible violation of the Human Rights Act. As to the employment provisions, for example, Crosspoint takes the position that all of its teachers are “ministers” whose terms of employment are not subject to the Human Rights Act under the “ministerial exception” that the Supreme Court has recognized in several cases, but the question of whether a particular teacher should be classified as a “minister” for this purpose requires particular fact-finding that can’t be resolved in a pre-trial motion for injunctive relief.

The key to the court’s result was the judge’s determination that the Human Rights Law was general and neutral in application, a heavily contested point, as Crosspoint argued that it was clear from the timing that the legislature was trying to achieve an end-run around of the then-anticipated Carson decision, as the legislators were eager to avoid spending taxpayer money to subsidize institutions or employers with discriminatory policies. After reviewing the history of the Maine Human Rights Act and its treatment of religious exemptions, Judge Woodcock was not persuaded by Crosspoint’s factual allegations at this stage of the case.

Judge Woodcock acknowledged that “this case presents novel constitutional questions” in the wake of Carson v. Makin,” so he framed his opinion “as a prelude to a challenge to the Court of Appeals for the First Circuit for a more authoritative ruling.” Assuming that First Liberty will quickly appeal the denial of the preliminary injunction, this chapter will take some time to unfold, with the case eventually finding its way to the Supreme Court.