ME: Demanding Religious Discrimination Funding

Once again, it's the argument that taxpayers must be forced to fund discrimination.

Maine ended up in this debate because they already had a voucher program, created so that communities that couldn't afford to operate a school could send students to schools elsewhere, including private schools. But on the heels of Trinity and Espinoza, some folks decided to see if they could get the courts to take their new version of the First Amendment one step further.

Could they successfully argue that it's religious discrimination and an interference with the right of Free Exercise if the state didn't force taxpayers to help fund the private religious school? Hence the Carson v. Makin case.

SCOTUS said, "Sure!"

Noah Feldman, a Harvard law professor, had called this one after Trinity, writing:

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. 

In her Carson dissent, Justice Sotomayor also nailed it:

After assuming away an Establishment Clause violation, the Court revolutionized Free Exercise doctrine by equating a State’s decision not to fund a religious organization with presumptively unconstitutional discrimination on the basis of religious status.

Not an exaggeration. Chief Justice Roberts offered that rationale for the decision:

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

But that, it turns out, is not enough.

Maine had put in place an amendment to its anti-discrimination law, saying that taxpayer dollars couldn't go to a school that was violating those anti-discrimination laws.

The schools in the original lawsuit said that under those conditions, they would not accept voucher money (in other words, you cannot pay them enough to accept LGBTQ persons or "un-saved" individuals in their schools). Don't take away their ability to discriminate.

Not that they admit to discrimination. The spokesperson for the American Association of Christian Schools gave the AP this swell quote back in 2022:

We don’t look at it as discrimination at all. We have a set of principles and beliefs that we believe are conducive to prosperity, to the good life, so to speak, and we partner with parents who share that vision.

This is not surprising rhetoric. There's a whole industry out there about helping Christian schools make sure they are only serving "mission-appropriate" families. It's not that they are discriminating against anyone; they're just refusing to serve people who aren't aligned with their values. 

The next step was, of course, a lawsuit. Bangor Christian Schools sued the state of Maine in 2023, asking first for an injunction against the Maine Human Rights Act (MHRA) restriction that bars them from receiving state money as long as they continue to discriminate. Their assertion is that the “poison pill” of human rights law in Maine violates their religious liberty, that they cannot exercise that liberty unless they can both receive state funds and continue to discriminate against students and prospective faculty that don’t meet their religious requirements.

They didn't get their injunction. So now the case, along with a similar case from St. Dominic's Academy in Auburn, has worked its way up to the U/S. Court of Appeals of the First Circuit, where arguments were heard on Tuesday. First Liberty Institute, one more Texas-based right wing legal firm, is arguing for the church. These folks were also part of the case of the paying coach, a no-LGBTQ bakery, and the original Carson case.

First Liberty is arguing a chilling effect, they argue. “The First Amendment actually does protect religious organizations from the very activity that the state of Maine is trying to impose upon them,” said lawyer Jeremy Dys. The "very activity" that the state is imposing is to stop discriminating against some staff or students. 

As the lawyer for St. Domonic's explained: “Non-discrimination law is important for everybody. But as important as it is, it can’t be used to deprive religious believers of their rights.” The "rights" we're discussing are their right to discriminate against people to whom they object. 

So this case still turns on the argument that people and institutions cannot freely exercise their religion unless they can freely discriminate and freely collect taxpayer money to do it. Therefor, taxpayers must help fund discriminatory, religious schools. And in keeping with soi many of these cases, the schools have not actually been required to do anything yet, because they have not yet applied to be included in the voucher program. In other words, their lack of taxpayer-funded voucher income does not seem to be keeping them from operating and exercising their religious beliefs.

You might be tempted to point out that there are parallels between the discrimination of either side, but there is one more distinction-- while the state's "discrimination" is "against" institutions and organizations, the school's discrimination is against individual human beings. 

It's a version of Christianity that I find puzzling. Did I miss the part of the Bible where Jesus said, ":et all the children come to me, except for those couple over there. The one looks kinda gay, and the other one doesn't seem to be sufficiently impressed by Me. Just keep them away." 

At some point we'll have a decision from the First Circuit, and it doesn't take a crystal ball to see that the decision will then be appealed all the way up to the Supreme Court where the writing is probably already on the wall for more taxpayer funded religious discrimination. I'm going to go ahead and pray that I turn out to be wrong.