Everyone has heard of the Supreme Court’s 1954 decision in Brown v. Board of Education, holding that state laws segregating public schools by race violate the Constitution. Brown combined five similar cases, including one challenging racial segregation in Virginia, and Sen. Harry F. Byrd (D-VA) called for “massive resistance” against Brown’s implementation.
Well, massive resistance to the Supreme Court’s vindication of rights is not dead; it simply moved north. Today, Maine is the state massively resisting, but its target is the First Amendment’s first individual right, the free exercise of religion.
When it unanimously enacted the International Religious Freedom Act, Congress acknowledged that the “right to religious freedom undergirds the very origin and existence of the United States.” Protection for not only religious belief, but religious exercise, began more than a century before independence, and America’s founders considered it an inalienable right.
As the Supreme Court put it in a 1943 decision, First Amendment freedoms, including religious exercise, are in a “preferred position.” In annual proclamations, presidents of both parties have called religious freedom “fundamental,” “essential,” and a “critical foundation of our Nation’s liberty.”
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That was then, this is Maine. While state law requires that each child “shall be provided an opportunity to receive the benefits of a free public education,” more than half of Maine counties have no public schools. To help families in those areas, the legislature established a program to pay the tuition “at the school of the parent’s choice.”
Yet while schools that meet some basic accreditation standards can be anywhere in the world, and even limited to one sex, there is one choice that Maine will not allow parents to make. Private schools receiving tuition assistance funds must be … wait for it … “nonsectarian.”
Maine imposed this restriction after the state attorney general at the time opined that including religious schools would violate the First Amendment’s prohibition on an “establishment of religion.” The Supreme Court cleared that up in its 2002 decision in Zelman v. Simmons-Harris, holding that including religious schools in such a program does not violate the First Amendment if tuition assistance funds reach a particular schools “wholly as a result of … genuine and independent private choice.”
No matter, Maine resisted anyway, with the legislature rejecting a bill that would drop the “nonsectarian designation.” Fast forward to the Supreme Court’s decision 2020 decision in Espinoza v. Montana Dept. of Revenue, holding that excluding otherwise qualifying schools from a tuition assistance program solely because they are religious violates the First Amendment.
Maine parents who sent their children to Christian schools that were not only accredited, but even state-approved for purposes of its compulsory attendance law, challenged the tuition assistance program’s religious discrimination. Maine kept on resisting, arguing that religious schools were excluded not because of their religious “status” but their religious “use” of the funds.
In Carson v. Makin, the Supreme Court last year held that this was a distinction without a constitutional difference. A program that “specifically carve[s] out private religious schools from those eligible to receive such funds,” the Court said in Carson, is permissible only if it “advance[s] ‘interests of the highest order’ and [is] narrowly tailored in pursuit of those interests.” This is the toughest standard in American law, and Maine’s exclusionary tuition assistance program failed.
Maine, however, was not done resisting. The Maine Human Rights Act (HRA) prohibits employment discrimination on various grounds, including sexual orientation or gender identity. At the same time, it exempts religious employers from hiring “members of the same religion” or those who “conform to the religious tenets” of the employer. With the current Maine Attorney General, Aaron Frey, condemning traditional, or Biblical, teaching on sexuality as “promot[ing] discrimination, intolerance, and bigotry,” the legislature struck again, restricting this religious exemption only to schools that do not participate in the tuition assistance program.
In other words, after its attempt to discriminate against all religious schools was rebuffed, Maine is now trying to discriminate among religious schools, targeting those with certain religious teachings on certain subjects.
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This obviously compounds, rather than alleviates, Maine’s attack on the inalienable right to exercise religion. Remember the legal standard that the Supreme Court said in Carson applies here. Maine must be arguing that enforcing compliance with the government’s view of sexuality is “of the highest order” and that discriminating against religious schools that do not share that view is a “narrowly tailored” means to that end.
But there’s more. Single-sex schools can not only participate in the tuition assistance program, they are exempt from HRA enforcement.
Crosspoint Church in Bangor, Maine, is challenging this new assault on religious freedom. Crosspoint operates the Christian school to which two of the Carson plaintiffs sent their children. On March 27, 2023, Crosspoint filed suit in federal court, arguing that the new law violates the First Amendment’s Establishment, Free Exercise, and Free Speech clauses. Crosspoint’s complaint alleges that enforcing the HRA “is designed to force Plaintiff to stop educating its students from its religious perspective as a condition of participating in the tuition program.”
Maine will not be alone in its massive resistance. What had once been a preferred right to freely exercise religion is now increasingly viewed as something that must be, by whatever means, eliminated entirely. This is a long way to travel in a short time, but in a very dangerous direction.
This piece originally appeared in Christian Renewal