Maine’s battle with religious schools faces sharp questions at First Circuit

BOSTON (CN) — A long-running dispute over Maine’s efforts to exclude religious schools from its tuition-reimbursement program returned to the First Circuit on Tuesday, with a three-judge panel sounding skeptical of the state at oral arguments.

“We have a law that penalizes religious schools if they act like religious schools,” worried U.S. Circuit Judge William Kayatta.

Like many rural states that have trouble maintaining a comprehensive public school system, Maine offers to reimburse certain parents who enroll their children in private schools. Starting in 1980, however, the state refused to reimburse parents who chose a religious school.

In 2022, the Supreme Court held that Maine’s exclusion of religious schools violated the First Amendment. In response, Maine quickly passed a new law that said that if a religious school chose to participate in the reimbursement program, it would forfeit its exemption from state antidiscrimination laws. That meant a religious school would no longer be allowed to require students, parents or employees to abide by its principles.

Maine officials made little secret of the fact that the new law was intended to circumvent the Supreme Court’s decision and keep religious schools out of the program. The state’s attorney general condemned schools like the plaintiffs — a Catholic school and a nondenominational Christian school — as bigoted and “inimical to a public education.” The speaker of the state House of Representatives tweeted that the new law was a response to “the ludicrous decision from the far-right SCOTUS.”

A lower court denied both schools a preliminary injunction against the law last summer, and they appealed.

Kayatta in particular seemed to think that the new law was suspect after the 2022 Supreme Court decision.

“The state can’t say, ‘We’re not giving you funds because you’re a religious school,’” he said. But “if you view a private religious school as having as its primary mission proselytizing a belief set or faith, then if the state comes in and says ‘you can’t do that if you get funds,’ that seems to be the equivalent of saying ‘you can’t do that if you’re a religious school.’”

“We’re not saying that you have to stop proselytizing,” answered Christopher Taub, the state’s chief deputy attorney general. “Schools can teach anything they want — what a proper marriage is, how God ordains a person’s gender.”

“But that comes with a price,” Kayatta objected. “They have to allow reverse proselytizing back.” The Barack Obama appointee then asked, “Suppose a Catholic school group formed ‘Catholics for Pro-Choice,’ could a Catholic school tell the students they can’t do that?”

“We don’t know the answer to that,” Taub said. He argued that the case wasn’t ripe because a specific controversy hadn’t yet arisen.

“Doesn’t that create a chilling problem?” Kayatta rejoined.  “If they take their chances, and they can’t, they’ll get large fines.” He added, “they have a sword of Damocles hanging over them.”

Taub replied that “a court doesn’t have jurisdiction just because a school wants guidance ahead of time.”

“We do that all the time under the First Amendment,” Kayatta objected. “Doesn’t that create an entanglement problem? Courts will have to decide what is religious expression. That involves the state in making judgments about what is religious or not religious.”

Taub said that if a school punished a student for wearing a Star of David, that would be “very basic” and wouldn’t require a court to parse religious doctrine.

“So do you read the statute as prohibiting religious schools from not allowing students to question whether Christ is the son of God?” Kayatta asked.

Taub said it would depend on whether a student expressed doubt in a private or a public conversation, which led to a discussion of where that distinction appeared in the state’s human rights laws. Ultimately, Taub conceded that the court could sever the religious expression elements in the statute and simply uphold the ban on discrimination in hiring.

But even that caused trouble for the state. Taub explained that under the new statute, “If a school accepts public funds, it can’t refuse to hire someone simply based on their sexual orientation or gender identity, but it could refuse to hire them if the person can’t conform to the school’s religious tenets. For instance, a gay person could conform to religious tenets” that ban homosexuality, he said.

“I can see that a few of you look skeptical about that,” he added, reading the panel’s facial expressions.

U.S. Circuit Judge Lara Montecalvo, a Joe Biden appointee, and U.S. Circuit Judge Bruce Selya, a Ronald Reagan appointee, rounded out the panel.