In St. Dominic Academy v. Makin, (D ME, Aug. 8, 2024), a Maine federal district court, in a 75-page opinion, refused to preliminarily enjoin enforcement of Maine's educational and employment antidiscrimination laws in a suit brought by a Catholic diocese, a Catholic school and a Catholic family. After the U.S. Supreme Court held that Maine could not exclude parochial schools from participating in its program that pays tuition for certain out-of-district students, the legislature amended state law to provide that schools receiving state funds could not discriminate on the basis of religion or gender identity. This had the effect of excluding Catholic schools. Plaintiffs contend that this violates their free exercise rights.
The court concluded that the statute must meet strict scrutiny review because it is not a generally applicable law. However, the court found that the statute survives struct scrutiny, saying in part:
As a general matter, Maine’s asserted interest in eliminating discrimination within publicly funded institutions is compelling....
Furthermore, all the challenged provisions are written to prohibit only discriminatory conduct. Under the provisions, “St. Dominic would still be free to conduct morning prayers however it wants, teach from a Catholic perspective, and promote Catholicism to the exclusion of all other religions.”... While the Plaintiffs put forth a number of policies and practices that arguably violate the challenged provisions, at this early stage—no state court has interpreted Chapter 366—it is not sufficiently clear the Act would reach any conduct that the state does not consider discriminatory....
Accordingly, the Court concludes that Chapter 366 survives strict scrutiny. In reaching this result, the Court is mindful of the Supreme Court’s admonition that a “law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.” ... However, “rare” does not mean “never.” Based on the record before it at this preliminary stage, the Court determines that the weighty interest advanced by the Defendants and the tailoring of Chapter 366 to fit that interest support a determination that Chapter 366 is likely to survive strict scrutiny....
In reaching its conclusions, the Court has discussed and decided the difficult constitutional questions presented. At the same time, the Court recognizes that this case poses novel constitutional issues and ... the Court has attempted to frame its opinion as a prelude to a challenge to the Court of Appeals for the First Circuit for a more authoritative ruling.
