Lawsuit Seeks To Preserve Religious School Freedom To Discriminate

Think of it as Carson Part Two— in the wake of the case that broke down the wall between church and state, some New England private schools are arguing that the wall has not been broken down enough.

In Carson v. Makin, Chief Justice Roberts laid out the same exact reasoning that pleased conservative fans of religion in Trinity Lutheran and Espinoza, taking us one step further down the road toward a country where taxpayers are required to fund private religious activities.

In particular, we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.

And as that applies in this case regarding Maine’s system of funding education for students whose town has no school of its own:

The State pays tuition for certain students at private schools— so long as the schools are not religious. That is discrimination against religion.

Therefore, the court’s majority declared that the taxpayers must fund tuition for private religious schools.

This followed the precedent that this court set when it decided Trinity Lutheran v. Comer. At the time of that decision, Noah Feldman, professor of law at Harvard University and former clerk to U.S. Supreme Court Justice David Souter, wrote:

It’s the first time the court has used the free exercise clause of the Constitution to require a direct transfer of taxpayers’ money to a church. In other words, the free exercise clause has trumped the establishment clause, which was created precisely to stop government money going to religious purposes.

The win in Carson did not go quite far enough for some. In particular, Maine had modified its Human Rights Act to prohibit discrimination based on gender identity, shutting some private religious schools out of the voucher system to which Carson had won them admission.

In lawsuit filed in March of this year, Crosspoint Church, which operates Bangor Christian School (BCS—one of the schools involved in Carson), calls the restrictions a “poison pill” that keeps the school unable to accept state taxpayer money due to these restrictions on employment discrimination.

Attorney General Aaron Frey has not been shy about his feelings about the Carson decision. The day the Carson ruling was released, Frey said in a press release:

Public education should expose children to a variety of viewpoints, promote tolerance and understanding, and prepare children for life in a diverse society. The education provided by the schools at issue here is inimical to a public education. 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.

To the plaintiffs, Frey’s statements are a smoking gun, signaling the state deliberately disparaged their religious beliefs and set out to block them from receiving taxpayer funding. The state is “punishing religious schools for living out their religious beliefs,” claim some, though in this case “living out their religious beliefs” means discriminating against prospective staff or students on the basis of religion, sexual orientation, or gender identity. And we find ourselves once again in this same circular argument: the government is discriminating against the school because it will not fund the school’s desire to discriminate against LGBTQ persons or persons who have a different faith.

This appears to be the next legal frontier in the work of breaking down the wall between church and state when it comes to school.

At least one other case is making the same argument. In Vermont, a private religious school is suing after it was shut out of interscholastic sports over its refusal to play against a girls basketball team that included a trans female. Mid Vermont Christian School argues that the state is engaging purposeful religious discrimination against the school by refusing to renew its participation in a tuition program. That refusal comes because to apply for independent school status in Vermont, the school must demonstrate compliance with a rule prohibiting many forms of discrimination, including on the basis of sexual orientation or gender identity.

Carson established that a state could not refuse to send voucher funds to a private school just because it was a religious school. The next step will be to test if the state must allow that school to continue to receive taxpayer funding even if it exercises its religious beliefs by discriminating in ways that are illegal for public schools.

There is no question that BCS should be free to hire only teachers that adhere to the school’s preferred faith. This suit will test the question of whether or not the taxpayers should be required to subsidize BCS’s choices.

In the meantime, Crosspoint had asked for a preliminary injunction in order to meet fall of 2023; that clearly did not happen. Now the case appears to be in the discovery stage, with the next step in its legal journey to come in the first months of 2024.