De Facto Exclusion of Catholic Schools From Tuition Grant Program Through Antidiscrimination Law Survives Strict Scrutiny

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.

Jury Must Decide Whether School Board Had Religious Animus

In Pines Church v. Hermon School Department, (D ME, July 31, 2024), a Maine federal district court denied both parties' motions for summary judgment.  Pines Church sought to enter a 12-month lease to use space at Hermon High School for Sunday religious services.  The School Committee offered only a month-to-month lease. Plaintiffs claimed that the denial of a long-term lease was motivated by animus against their orthodox Christian religious beliefs. The court said in part:

Plaintiffs rely on the relatively blatant bias and the inferences that arise from the interrogatories posed by one Committee member who demanded to know from Pastor Gioia the Church’s “position” on a spate of religious, political, and cultural flashpoints before evaluating whether to extend a lease on behalf of a publicly funded school.  Plaintiffs also rely on a somewhat more tepid bias, sanitized through fear-of-association comments by others, along the lines that association with the Church may not fit with the Committee’s “goals” and may therefore create a “negative image” by not comporting with the School Department’s “mission” and evidently its own beliefs.  This evidence certainly is probative of Plaintiffs’ position that the School Committee’s refusal to offer Plaintiffs a lease was motivated by unconstitutional considerations, such as animus toward the Church’s orthodox religious beliefs.  For its part, the School Department counters that the School Committee’s decision, save for the one Committee member’s bill of particulars put to the Pastor, simply resulted from humdrum, benign space and cost concerns, although that narrative is far from conclusive based on the summary judgment record.  These competing characterizations of the Committee’s motivations form the most conspicuous reason I deny summary judgment to the parties in favor of a jury trial.

Court Upholds Maine's Law Barring LGBTQ Discrimination by Christian School Receiving State Funds

In Crosspoint Church v. Maikin, (D ME, Feb. 27, 2024), a Maine federal district court refused to enjoin application of the state's educational antidiscrimination laws against a private Christian school. In 2022, the U.S. Supreme Court struck down Maine's exclusion of sectarian schools from its tuition payment program to out-of-district schools when districts do not operate their own public high schools. (See prior posting.) While that litigation was in progress, Maine's legislature amended its civil right laws to now bar schools that receive public funds from discriminating on the basis of sexual orientation or gender identity. In rejecting the school's challenges, the court said in part:

The Court concludes that Crosspoint is not entitled to a preliminary injunction.  With this said, the Court acknowledges that Crosspoint is raising important legal questions.  Despite the plaintiffs’ hard-fought and significant victory at the United States Supreme Court in Carson, the Maine Legislature and the Maine Attorney General have largely deprived Crosspoint and similar religious schools of the fruit of their victory.  Crosspoint essentially argues that the Maine Legislature’s enactment of statutes that prohibit discrimination on the basis of sexual orientation and gender identity is a form of state-enforced, secular religion.  Yet, the Maine Legislature has the authority to define protected classes under its antidiscrimination laws.  The rub comes when the Maine Legislature’s view of the categories of people meriting protected status conflicts with sincerely held beliefs of members of religious communities.  This is a tension as old as the nation itself.  Although it has done its best to set out, analyze, and decide these difficult constitutional issues, the Court also recognizes that this case poses novel constitutional questions and 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....

Challenge To Maine's Past Covid Restrictions on Churches Is Dismissed

In In re COVID-Related Restrictions on Religious Services, (DE Super., Aug. 28, 2023), a Delaware Superior Court dismissed a suit challenging now-rescinded restrictions that limited the number of attendees and the activities in houses of worship during the Covid pandemic. The court concluded that the governor had qualified immunity from damage claims because at the time it was not clearly established that these types of restrictions violated the U.S. Constitution. The State Tort Claims Act gives the governor immunity from damage actions for violation of the Delaware Constitution. The court also concluded that there is no case or controversy to give it jurisdiction to issue a declaratory judgment and that plaintiffs lack standing to bring their claims, saying in part:

The Court can have no influence on the alleged past harm caused by the Restrictions when they have already been terminated years ago.

WDEL News reports that plaintiffs plan an appeal to the state Supreme Court.

Challenge To Maine's Elimination of Religious Exemption To School Vaccination Mandate May Move Ahead

Fox v. Makin, (D ME, Aug. 16, 2023), is a challenge to the Maine legislature's removal of religious exemptions from the state's school vaccination requirements.  Plaintiffs' son was denied a religious exemption by the principal and vice-principal of the son's school at the direction of the state commissioner of education. In the case, a Maine federal district court allowed plaintiffs to move ahead with their claims for injunctive and declaratory relief against the Commissioner, principal and vice-principal. The court held that plaintiffs' free exercise claim was subject to strict scrutiny, finding that the vaccination law lacked general applicability. The court said in part:

Maine continues to permit multiple non-religious exemptions, including a 90-day grace period for non-religious students, a medical exemption, and the IEP sunset provision, all of which arguably undermine its student health and safety interests while restricting religious exemptions that may pose comparable risks....

The Court finds it plausible that section 6355 is not narrowly tailored to advance Maine’s interests.

The court also found that defendants had qualified immunity from damage claims, saying in part:

... [I]t was not clearly established during the period alleged in the Amended Complaint that failing to permit a religious exemption to mandatory school vaccination (while providing others certain non-religious exemptions) violates religious objectors’ constitutional rights. Thus, even if the Court were to assume – without deciding – that section 6355 is unconstitutional, it would be “unfair to subject” the Commissioner and the individual School Defendants “to money damages for picking the losing side of the controversy” by complying with section 6355....

Maine Sued Over New Limits On Religious Schools In Tuition Payment Program

 On Tuesday, a Catholic school in Maine and parents who would like to send their children to that school under Maine's tuition payment program for students from districts without public high schools filed suit in a Maine federal district court challenging new restrictions which the Maine legislature imposed on schools participating in the tuition payment program. The complaint (full text) in St. Dominic Academy v. Makin, (D ME, filed 6/13/2023), contends that the legislature enacted the new provisions to exclude religious schools after the U.S. Supreme Court in Carson v. Makin invalidated a requirement that participating schools be nonsectarian. The complaint explains: 

Among other things, Maine:

• Imposed a new religious neutrality requirement on schools, stating that “to the extent that an educational institution permits religious expression, it cannot discriminate between religions in so doing”;

• Imposed a new religious nondiscrimination requirement on schools; and

• Removed the religious exemption that had previously allowed religious (but “nonsectarian”) schools to handle sensitive issues relating to sexual orientation and gender identity in a way that reflected their faith commitments....

Becket issued a press release announcing the filing of the lawsuit.

1st Circuit: Free Exercise Claim by Maine Healthcare Workers Over COVID Mandate May Move Forward

 In Lowe v. Mills, (1st Cir., May 25, 2023), the U.S. 1st Circuit Court of Appeals reversed in part a Maine district court's dismissal of a suit by seven health care facility workers whose request for religious exemptions from the state's COVID vaccine mandate was rejected.  The court said in part:

The claims against the State assert, among other things, that the Mandate, by allowing medical but not religious exemptions, violates the Free Exercise and Equal Protection Clauses of the U.S. Constitution....

We agree with the district court that the complaint's factual allegations establish that violating the Mandate in order to provide the plaintiffs' requested accommodation would have caused undue hardship for the Providers, and so affirm the dismissal of the Title VII claims. But we conclude that the plaintiffs' complaint states claims for relief under the Free Exercise and Equal Protection Clauses, as it is plausible, based on the plaintiffs' allegations and in the absence of further factual development, that the Mandate treats comparable secular and religious activity dissimilarly without adequate justification.

Christain School Sues Over "Poison Pill" Provisions That Exclude It from Maine's Tuition Payment Program

Suit was filed this week in a Maine federal district court by a Christian school challenging 2021 amendments to Maine's Human Rights Act that operate to exclude the school from participating in Maine's tuition payment program for students from districts without public high schools.  The motion for a preliminary injunction (full text) which was filed along with the complaint in Crosspoint Church v. Makin, (D ME, filed 3/27/2023), focuses on provisions in 5 MRSA §4602 that now require schools that participate in the tuition reimbursement program to comply with the sexual orientation and gender identity non-discrimination provisions. Religious schools that do not receive public funding are exempt from that provision. The law also now provides that "to the extent that an educational institution permits religious expression, it cannot discriminate between religions in so doing." Plaintiff characterizes these provisions as "poison pills" that prevent it from participating in the tuition payment program without violating its religious beliefs after the U.S. Supreme Court in Carson v. Makin upheld the right of sectarian schools to participate. Plaintiff seeks a preliminary injunction based on violations of the Free Exercise, Free Speech and Establishment Clauses. Washington Times reports on the lawsuit.

Maine's COVID Vaccine Mandate, Without Religious Exemption, Is Upheld

 In Lowe v. Mills, (D ME, Aug. 18, 2022), a Maine federal district court rejected challenges by seven healthcare workers to Maine's COVID vaccination requirement for healthcare workers. No religious exemption is available; medical exemptions are available. The court rejected plaintiffs Title VII religious discrimination claim, saying in part:

[I]f the Hospital Defendants had granted the sole accommodation sought by the Plaintiffs, it would result in an undue hardship by subjecting the Hospital Defendants to the imposition of a fine and the “immediat[e] suspension of a license.”

The court also rejected plaintiffs' 1st Amendment Free Exercise claims, saying in part:

In the context of the COVID-19 vaccine mandate, the medical exemption is rightly viewed as an essential facet of the vaccine’s core purpose of protecting the health of patients and healthcare workers, including those who, for bona fide medical reasons, cannot be safely vaccinated. In addition, the vaccine mandate places an equal burden on all secular beliefs unrelated to protecting public health—for example, philosophical or politically-based objections to state-mandated vaccination requirements—to the same extent that it burdens religious beliefs. Thus, the medical exemption available as to all mandatory vaccines required by Maine law does not reflect a value judgment unfairly favoring secular interests over religious interests. As an integral part of the vaccine requirement itself, the medical exemption for healthcare workers does not undermine the vaccine mandate’s general applicability.

Maine AG Says Christian Schools May Still Be Ineligible For Tuition Assistance Program

 As previously reported, last week in Carson v. Makin, the U.S. Supreme Court held that sectarian schools could not be excluded from Maine's tuition aid program that is open to nonsectarian private schools. In a press release posted immediately after the Court's decision, Maine's Attorney General said that many religious schools may still not be able to participate in the program because they:

refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff....  Educational facilities that accept public funds must comply with anti-discrimination provisions of the Maine Human Rights Act, and this would require some religious schools to eliminate their current discriminatory practices.

Insurance Journal reports that in response to the AG's statement, a spokesperson for the American Association of Christian Schools said:

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....

Supreme Court Says Maine Cannot Exclude Sectarian Schools From Its Tuition Reimbursement Program

In Carson v. Makin, (Sup. Ct., June 21, 2022), in a 6-3 decision, the U.S. Supreme Court held that Maine's program that pays tuition (up to a statutory limit) to out-of-district public or private high schools for students whose districts do not operate a high school, but which requires participating schools to be nonsectarian, violates the Free Exercise Clause. The majority opinion by Chief Justice Roberts says in part:

The State pays tuition for certain students at private schools— so long as the schools are not religious. That is discrimination against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise....

Maine’s “nonsectarian” requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.

Justice Breyer, joined by Justice Kagan and for the most part by Justice Sotomayor, filed a dissenting opinion which says in part:

Nothing in our Free Exercise Clause cases compels Maine to give tuition aid to private schools that will use the funds to provide a religious education.... [T]his Court’s decisions in Trinity Lutheran and Espinoza prohibit States from denying aid to religious schools solely because of a school’s religious status—that is, its affiliation with or control by a religious organization.... But we have never said that the Free Exercise Clause prohibits States from withholding funds because of the religious use to which the money will be put....

Maine’s decision not to fund such schools falls squarely within the play in the joints between those two Clauses. Maine has promised all children within the State the right to receive a free public education. In fulfilling this promise, Maine endeavors to provide children the religiously neutral education required in public school systems.... The Religion Clauses give Maine the ability, and flexibility, to make this choice. 

Justice Sotomayor also filed a dissenting opinion which says in part:

This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.... 

If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens.

CNN reports on the decision.

Suit Challenges Maine's Ban On Sunday Hunting

Suit was filed yesterday in a Maine state trial court challenging Maine's ban on Sunday hunting. The complaint (full text) in Parker v. Camuso, (ME Super. Ct., filed 4/27/2022),  contends that the Right To Food Amendment to Maine's constitution (Art. I, Sec. 25) adopted in 2021 invalidates the state's ban on Sunday hunting as applied to individuals who hunt on Sundays to harvest food for themselves and their families. The complaint calls the Sunday hunting ban "a historical and religious anachronism."  Portland Press Herald reports on the lawsuit.

Certiorari Denied In Challenge To Maine COVID Vaccine Mandate

Yesterday the U.S. Supreme Court denied review in Does 1-3 v. Mills, (Docket No. 21-717, certiorari denied, 2/22/2022) (Order List). At issue in the case is whether Maine's COVID vaccine mandate for healthcare workers, without the availability of religious exemptions, violates the Free Exercise clause. (See prior posting.) LifeNews reports on the denial of certiorarai.

Transcript and Audio Of Today's Arguments In Carson v. Makin

 Here are links to the transcript and audio of this morning's Supreme Court arguments in Carson v. Makin challenging Maine's exclusion of schools that provide religious instruction from its program that pays high school tuition for students from districts without public high schools. CNN reporting on the arguments said that Justices expressed "deep skepticism" of Maine's exclusion of religious schools. [corrected]

Supreme Court Will Hear Arguments Tomorrow In Maine School Tuition Case

Tomorrow, the U.S. Supreme Court will hear oral arguments in Carson v. Makin. In the case, the U.S. 1st Circuit Court of Appeals upheld Maine's statutory provisions that call for paying tuition to out-of-district public or private high schools for students whose districts do not operate a high school. However, to qualify to receive tuition assistance payments, a private school must be non-sectarian. Schools that provide religious instruction do not qualify. (See prior posting.) 

The SCOTUSblog case page has links to the briefs and other filings in the case. The oral arguments will be streamed live at this link when the Court convenes at 10:00 AM Eastern Time on Wednesday.

Supreme Court, 6-3, Denies Injunction Pending Appeal In Maine COVID Vaccination Case

The U.S. Supreme Court yesterday, by a vote of 6-3, in John Does 1-3 v. Mills, (Sup. Ct., Oct. 29, 2021), refused to enjoin enforcement of Maine's COVID vaccine mandate while a petition for Supreme Court review of the 1st Circuit's decision is pending. Healthcare workers sued objecting to the absence of religious exemptions from the mandate. The 1st Circuit in an Oct. 19 opinion (full text) refused a preliminary injunction against enforcement. The Supreme Court's Order was issued without an accompanying majority opinion. However, Justice Barrett, joined by Justice Kavanaugh, issued a short concurring opinion which appears to recognize the concern with the Court's increasing use of its "shadow docket" to render important decision.  Justice Barrett wrote in part:

When this Court is asked to grant extraordinary relief, it considers, among other things, whether the applicant “‘is likely to succeed on the merits.’” ... I understand this factor to encompass not only an assessment of the underlying merits but also a discretionary judgment about whether the Court should grant review in the case.... Were the standard otherwise, applicants could use the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take—and to do so on a short fuse without benefit of full briefing and oral argument....

Justice Gorsuch, joined by Justices Thomas and Alito, filed an opinion dissenting from the denial of injunctive relief, saying in part:

Maine has so far failed to present any evidence that granting religious exemptions to the applicants would threaten its stated public health interests any more than its medical exemption already does.

This case presents an important constitutional question, a serious error, and an irreparable injury.... [H]ealthcare workers who have served on the front line of a pandemic for the last 18 months are now being fired and their practices shuttered. All for adhering to their constitutionally protected religious beliefs. Their plight is worthy of our attention.

SCOTUS blog reports on the decision.

Washington Vaccine Mandate Upheld Over Free Exercise Challenge

 In Wise v. Inslee, (ED WA, Oct. 25, 2021), a Washington federal district court refused to enjoin Washington state's COVID vaccine mandate for for educators, healthcare workers, and state employees and contractors. One claim was that the mandate violates free exercise rights. The mandate recognizes that individuals may be entitled to disability related or religious accommodations under various anti-discrimination statutes. According to the court:

Plaintiffs appear to argue Proclamation 21-14 is facially neutral but not generally applicable because it essentially creates “an unlawful faith-based barrier to gainful employment.”....

As Defendants rightly indicate, because there are no exemptions for political, personal, or other objections, if anything, the Proclamation encourages religious practice....   Plaintiffs cannot demonstrate a discriminatory application solely because they disagree with the availability of accommodations. Plaintiffs have failed to demonstrate how the Proclamation is not generally applicable....

Plaintiffs’ objections to the Proclamation relate primarily to their disagreement with Defendants’ judgment regarding public health, which is insufficient to overcome the constitutionality of Defendants’ actions in enacting and promulgating the Proclamation, regardless of which level of scrutiny is applied.

Center Square reports on the decision.

Justice Breyer Refuses To Enjoin Maine Vaccine Mandate Pending Appeal

As previously reported, a Maine federal district court rejected claims by health care employees that Maine violated their free exercise rights when it eliminated religious exemptions from its COVID vaccine mandate for health care workers. The 1st Circuit refused to issue an injunction pending appeal, and plaintiffs sought similar relief from the U.S. Supreme Court through a filing with Justice Breyer. Yesterday in John Does 1-2 v. Mills, Justice Breyer issued an Order reading:

The application is denied without prejudice to applicants filing a new application after the Court of Appeals issues a decision on the merits of the appeal, or if the Court of Appeals does not issue a decision by October 29, 2021.

AP reports on developments.

Maine's Vaccine Mandate Without Religious Exemption Upheld

In Jane Does 1-6 v. Mills, (D ME, Oct. 13, 2021), a Maine federal district court rejected claims by health care employees that Maine violated their free exercise rights when it eliminated religious exemptions from its COVID vaccine mandate for health care workers. The court, denying a preliminary injunction, said in part:

Here, the Rule does not compel the Plaintiffs to be vaccinated against their will, and the Plaintiffs have, in fact, freely exercised their religious beliefs by declining to be vaccinated. This is not to minimize the seriousness of the indirect consequences of the Plaintiffs’ refusal to be vaccinated, as it affects their employment. Nonetheless, the Rule has not prevented the Plaintiffs from staying true to their professed religious beliefs....

The medical exemption at issue here was adopted to protect persons whose health may be jeopardized by receiving a COVID-19 vaccination. The exemption is rightly viewed as an essential facet of the vaccine’s core purpose of protecting the health of patients and healthcare workers, including those who, for bona fide medical reasons, cannot be safely vaccinated. Because the medical exemption serves the core purpose of the COVID-19 vaccine mandate, it does not reflect a value judgment prioritizing a purely secular interest ...—over religious interests.

In addition, the vaccine mandate places an equal burden on all secular beliefs unrelated to protecting public health—for example, philosophical or politically-based objections to state-mandated vaccination requirements—to the same extent that it burdens religious beliefs....

The court rejected plaintiffs' Title VII failure to accommodate claim by concluding that plaintiffs had not exhausted their administrative remedies.

UPDATE: After the 1st Circuit refused to issue an injunction pending appeal, plaintiffs filed a Motion For Writ of Injunction Pending Appeal with the U.S. Supreme court on Oct. 15. (Liberty Counsel press release.)

Suit Challenges Vaccine Mandate Without Religious Exemption

Suit was filed yesterday in a Maine federal district court on behalf of over 2000 health care workers (all filing anonymously) challenging Maine Governor Janet Mills' order that all health care workers be vaccinated against COVID-19, without any accommodation or exception for religious objections. Medical exemptions are still available.  The complaint (full text) in Jane Does 1-6 v. Mills, (D ME, filed, 8/25/2021), alleges free exercise and religious discrimination violations, saying in part:

The dispute in this case is not about what accommodations are available to Plaintiffs or whether accommodation of Plaintiffs’ sincerely held religious objections can be conditioned on compliance with certain reasonable requirements....The dispute is about whether Defendants are required to even consider a request for reasonable accommodation of Plaintiffs’ sincerely held religious beliefs....

Plaintiffs all have sincerely held religious beliefs that preclude them from accepting or receiving any of the three available COVID-19 vaccines because of the connection between the various COVID-19 vaccines and the cell lines of aborted fetuses, whether in the vaccines’ origination, production, development, testing, or other inputs....

Plaintiffs have all informed their respective employers that they are willing to wear facial coverings, submit to reasonable testing and reporting requirements, monitor symptoms, and otherwise comply with reasonable conditions that were good enough to permit them to do their jobs for the last 18 months with no questions asked.

Liberty Counsel issued a press release announcing the filing of the lawsuit.