Last week, the U.S. 1st Circuit Court of Appeals issued opinions in two cases raising similar, but not identical, challenges to the antidiscrimination requirements of Maine's Human Rights Act. The schools particularly focused on provisions barring religious discrimination and discrimination on the basis of sexual orientation and gender identity. The Act applies to private schools that receive public funding, such as funding under Maine's tuition assistance program.
In St. Dominic Academy v. Makin, (1st Cir., July 2, 2026), the court in a 108-page opinion, held that the employment nondiscrimination rule "does not credibly threaten to injure St. Dominic". The court said in part:
While the rule generally bars schools from employment discrimination based on religion, sexual orientation, or gender identity, the MHRA contains two specific carveouts for religious schools that apply regardless of whether a school participates in the tuition-assistance program. First, section 4553(4) expressly protects a religious school's ability to discriminate "with respect to employment of its members of the same religion, sect or fraternity."... Second, section 4573-A(2) allows a religious school to "require that all applicants and employees conform to [its] religious tenets."
The court also held that neither the ban on religious discrimination in admissions nor the ban on sexual orientation and gender identity discrimination trigger strict scrutiny. The court said in part:
[T]he Religious Nondiscrimination Rule does not exclude any school solely because of its religious character. Rather, the rule excludes a school because it discriminates against students on the basis of the students' religion, a practice that is neither uniquely religious nor uniquely tied to religious schools.... In short, the State is simply saying that a school in Maine, whether religious or not, cannot accept public funds while simultaneously putting up, for example, a "No Protestant Children Need Apply" sign....
... [T]he record does not suggest that religious schools, by their nature, engage in sexual-orientation or gender-identity discrimination.... Simply put, barring sexual orientation and gender identity discrimination does not exclude religious schools from the tuition-assistance program solely based on their religious character....
Just as combatting religious discrimination qualifies as a legitimate governmental pursuit, so too combatting sexual-orientation and gender-identity discrimination rises to the level.... And the imposition of liability for sexual-orientation or gender-identity discrimination on those schools that accept public funding rationally relates to those antidiscrimination goals, as does the requirement that such schools respect students' expression of their gender identity....
The court, however, ordered the trial court to issue a preliminary injunction barring enforcement of the rule that provides "to the extent that an educational institution permits religious expression, it cannot discriminate between religions in doing so." The court said in part:
St. Dominic, as part of its religious mission, requires students to attend religion classes, Mass, and other religious activities. These activities necessarily entail some degree of student participation. Even under the Commissioner's reading of the Religious Expression Rule, then, if a preacher at a school-mandated Mass permits students to say "Amen" in order to signify agreement, St. Dominic would then be required to allow expressions of disagreement. And in the classroom, inculcation often solicits -- indeed encourages -- affirmation, for example in the form of an iterative exchange of expression. Few would teach the Lord's Prayer without having the students recite it; and under the Religious Expression Rule that recitation would, in turn, appear to require the school to allow the reciting of, for example, the Hare Krishna Mahā mantra. And while such an example may seem fanciful, the point is that the Religious Expression Rule would inevitably interfere with a religious school's ability to foster an expressive environment consistent with its religious mission.....
Here, the Religious Expression Rule is facially nonneutral because it singles out "religious expression." ...
In Crosspoint Church v. Makin, (1st Cir., July 2, 2026), the court considered additional challenges to Maine's antidiscrimination rules as the apply to religious schools. Crosspoint Church contended that 2021 amendments to the state's anti-discrimination laws were a response to the Supreme Court's decision in Carson v. Makin that required Maine to include religious schools in its tuition assistance program. The court said in part:
The State likely adopted the 2021 Amendments at least partially in response to the Carson litigation. But we will not infer something as sinister as an "express[] design[]" to discriminate against a specific religious entity where Maine offers a quite logical and compelling rationale for the amendments' structure and timing:
If [the State's] Legislature anticipated that the [Carson] litigation might result in [the State] being prohibited from excluding religious schools from [public funding], it would have been entirely appropriate to then make the same distinction in education as the Legislature did [years earlier] for employment and housing and require religious organizations that accept public funds to comply with [all antidiscrimination rules].
Thus, just as we concluded in St. Dominic that the plaintiffs there had not shown that general antireligious animus likely motivated the 2021 Amendments,... so too do we hold here that Crosspoint has not shown that specific anti-BCS animus motivated the same amendments....
The court also rejected Crosspoint's free expression claims, saying in part:
The Sexual Orientation and Gender Identity Nondiscrimination Rule, Crosspoint contends, regulates speech because it would "require BCS to affirm a student's gender identity and sexual orientation," even though it would "violate[] BCS's statement of faith to admit a student or allow a student to remain enrolled who violates BCS's statement of faith by presenting as a gender not consistent with his or her biological sex."...
... [H]ere, Crosspoint seeks to refuse admission to (and expel) any student who is gay or transgender, irrespective of that student's speech. Although such refusal may express Crosspoint's views regarding sexual orientation and gender identity, and the Sexual Orientation and Gender Identity Nondiscrimination Rule would interfere with that expression, that does not transform the rule into a speech regulation....
