 On Tuesday, the First Circuit Court of Appeals heard opening arguments in St. Dominic v. Makin, a case that challenges Maine’s renewed attempt to circumvent the U.S. Supreme Court’s ruling in Carson v. Makin. That 2022 opinion should have settled the question of the participation of religious schools in secular programs. It prohibited the exclusion of religious schools from Maine’s tuition assistance program “on the basis of their religious exercise.” But now, Maine has chosen, as we have said before, to go full Confederate in nullifying the authority of the U.S. Supreme Court. Here's the backstory: Maine has a tuition assistance program that for many years allowed parents to use government funds to send their children to the schools of their choice – whether religious or secular. Then, in 1981, the state began excluding religious institutions based on the conclusion that allowing such use violated the Establishment Clause. In Zelman v. Simmons-Harris in 2002, the Supreme Court found that this constitutional interpretation was incorrect. Maine then adopted a new strategy, continuing its exclusionary policy towards religious schools based on the sectarian “use” to which any governments funds might go. Twenty years later, the Court ruled again, concluding that “the prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination.” True to form, Maine pivoted again, this time amending the Maine Human Rights Act (MHRA) to explicitly condition the receipt of state funds by religious institutions on compliance with state non-discrimination policies. The new law’s effect is to ensure that a religious school cannot accept tuition assistance if its beliefs and practices conflict with the state’s take on gender issues like traditional marriage. Under the new law, a religious school cannot express preference in admissions for students of that same religion – a condition that applies to Christian, Muslim, and Jewish schools. They must hire teachers whose views or lifestyles are inconsistent with school beliefs. And they must permit countervailing speech within school walls under a new “religious expression” rule that would require an allowance for “dissenting religious views” – even if those views completely undermine the school’s mission. To borrow a quote from the Becket Fund, which represents the plaintiffs, this is a “poison pill” that continues the tuition exclusion in a different guise. Moreover, it’s an obstinate and cynical ploy that displays contempt for both the high Court and for the rule of law. Maine’s maneuvering has real, harmful impacts on people like appellants Keith and Valori Radonis, who want only to send their children to a school that upholds their beliefs. As we’ve written about many times over, educating your children is among the most fundamental and consequential expressions of speech. Maine’s new policy puts the state squarely between families in need and their free exercise of religion and those beliefs. As Becket explains in its opening brief, the new provisions are patently and quite obviously unconstitutional. First, they violate Carson “by simply re-enacting the same exclusionary practices in a different code section.” They “entangle Maine officials in judging the internal religious practices of religious schools ...” And they “violate the Free Speech Clause because they compel religious schools to speak in ways that are contrary to their beliefs and force them to include speakers who reject the schools’ core commitments.” After Maine moved its exclusion policy to a different code section, one law professor wrote a piece in the New York Times entitled, “There’s a Way to Outmaneuver the Supreme Court, and Maine Has Found It.” Now, the state finds itself back in the principal’s office on the same issue with likely the same result. The First Circuit should find for the plaintiffs, upholding the First Amendment and the rule of law. Comments are closed.
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