In a setback for religious freedom, the U.S. Court of Appeals for the First Circuit ruled last Thursday that Christian schools in Maine must comply with pro-LGBT regulations that conflict with their religious beliefs, if they want to participate in a public tuition assistance program. “Essentially what the court has said is that you can believe what you want to believe, you can talk about what you believe, but once you exercise what you believe, that’s conduct that the state of Maine can regulate,” said Jeremy Dys, senior counsel for First Liberty Institute, which brought the lawsuit.

In Crosspoint Church v. Makin, a two-judge panel (one judge died before the opinion was issued) partially upheld a lower court order denying a preliminary injunction against Maine’s pro-LGBT regulations. Crosspoint Church runs Bangor Christian School (BCS). The court decided a second lawsuit featuring a Catholic school (St. Dominic Academy v. Makin) on the same day, on almost identical grounds.

BCS holds employees and students to basic biblical standards for gender and sexuality, and requires teachers to ascribe to a statement of faith. But those standards run afoul of provisions in the Maine Human Rights Act (MHRA), which Maine now applies to schools seeking to participate in its tuition assistance program. “A private school that participates in the tuition-assistance program and then violates the MHRA exposes itself to civil suits from both the Maine Human Rights Commission (MHRC) and private alleged victims, with remedies including injunctive relief and monetary damages,” the court described.

Specifically, the MHRA “‘Religious Nondiscrimination Rule’ bars covered schools from discriminating in admissions, financial aid, academics, and the like on the basis of religion,” as the court described, and its “‘Sexual Orientation and Gender Identity Nondiscrimination Rule’ bars discrimination in all the same activities on the basis of sexual orientation or gender identity but exempts religious schools that do not receive public funding.”

In practice, this rule would have the effect of preventing BCS’s attempts to enforce its biblical norms of sexuality and gender, Dys told The Washington Stand. For instance, if a male student identified as transgender and wished to use the female restrooms and locker rooms, BCS could not enforce its policies against him without violating the Sexual Orientation and Gender Identity Nondiscrimination Rule. “When the state of Maine presents this sort of regulation on conduct, it creates a real problem,” he said.

Yet the court concluded the Sexual Orientation and Gender Identity Nondiscrimination Rule “works no constitutional violation.” It also held that “certain of BCS’s policies” violated the Religious Nondiscrimination Rule, including “church member discounts” and “consideration of ‘prospective students’ spiritual fit.’”

Besides these rules, the MHRA also establishes an “Employment Rule” that “bars employment discrimination based on ‘race or color, sex, sexual orientation or gender identity, physical or mental disability, religion, age, ancestry, national origin or familial status,’” as the court described. With regard to this rule, the court partially reversed the district court, finding that Crosspoint Church fell into a carveout in the rule, thereby eliminating the “case or controversy.”

Finally, the MHRA’s “Religious Expression Rule” stipulates that, “to the extent that an educational institution permits religious expression, it cannot discriminate between religions in so doing.” The court rightly held that “the Religious Expression Rule unconstitutionally violates Crosspoint’s free-exercise rights” and remanded it to the district court for an injunction.

In the lawsuit, Crosspoint argued that “a set of recent amendments to the MHRA specifically targets BCS, in violation of the Free Exercise Clause,” as the court characterized it, based on a years-long history of litigation.

Maine has offered state tuition assistance to enable parents to send their children to the school of their choice since 1980. However, the program excluded Christian schools until 2022, when a 6-3 U.S. Supreme Court found the policy unconstitutional in Carson v. Makin. Parents at BCS were at the center of that case.

Based on its recent decisions in Trinity Lutheran (2016) and Espinoza v. Montana (2019), where government entities tried to block Christian schools from generally available public benefits, the Supreme Court in Carson held that “Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.”

In anticipation of a defeat in front of the Supreme Court, the Maine legislature amended the law in 2021, allowing Christian schools to receive state tuition assistance, but only if they complied with the state’s rules for nondiscrimination towards sexual orientation and gender identity.

In 2023, Maine Attorney General Aaron Frey (D) professed to be scandalized at the very nature of a Christian school. “The education provided by the schools at issue here is inimical to a public education,” he complained. “They promote a single religion to the exclusion of all others, refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff.”

Frey’s comments came in response to another federal lawsuit filed by Crosspoint Church, alleging that attaching general state funding to LGBT strings amounted to a “poison pill” for accepting the money. “Putting Plaintiff to the choice of participating in a generally available benefit program or surrendering its constitutionally protected religious exercise penalizes its religious exercise and constitutes a substantial burden,” the lawsuit argued.

However, the district court refused to view the circumstances in that light, or to apply the recent string of Supreme Court precedents. Instead, U.S. District Judge John Woodcock, a George W. Bush appointee, ruled in February 2024 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.”

This language reached further back to the “neutrality” test established in the Supreme Court’s 1990 ruling in Employment Division v. Smith, the controversial decision that prompted a furious Congress to overwhelmingly pass the Religious Freedom Restoration Act of 1991.

Dys contended that both the district court and the appellate court were wrong to rely on the neutrality test in this context, “because you can’t simply exclude religious exercise because it’s religious,” he told TWS. “You have to give full faith and credit to that part of the Constitution,” referring to the Free Exercise Clause of the First Amendment.

“I suspect there’s going to be further action on this case,” he concluded. First Liberty is still reviewing whether to appeal the case to the full First Circuit or directly to the Supreme Court. In either case, Dys said, “We’re going to seek further review.”

“We are disappointed that though the First Circuit acknowledges that religious institutions can teach what they believe, it would then refuse to allow conduct consistent with those beliefs,” Dys declared. “Religious education plays a critical role in our diverse society, but Maine’s leadership will not tolerate conduct consistent with those religious beliefs. As the U.S. Supreme Court has repeatedly said, punishing religious institutions for being religious is odious to our Constitution.”