A federal appeals court ruled last Thursday that Christian schools in Maine must follow state regulations concerning sexual orientation and gender identity if they choose to participate in a public tuition assistance program, even when those rules conflict with the schools’ religious beliefs. The decision came from the U.S. Court of Appeals for the First […]

A federal appeals court ruled last Thursday that Christian schools in Maine must follow state regulations concerning sexual orientation and gender identity if they choose to participate in a public tuition assistance program, even when those rules conflict with the schools’ religious beliefs.

The decision came from the U.S. Court of Appeals for the First Circuit in Crosspoint Church v. Makin. Crosspoint Church operates Bangor Christian School, which requires employees and students to follow biblical standards on sexuality and gender. Teachers must also affirm the school’s statement of faith.

Jeremy Dys, senior counsel for First Liberty Institute, which represents Crosspoint Church, said the ruling creates a sharp divide between religious belief and religious practice.

“Essentially what the court has said is that you can believe what you want to believe, you can talk about what you believe, but once you exercise what you believe, that’s conduct that the state of Maine can regulate,” Dys said.

A two-judge panel partially upheld a lower court’s refusal to block enforcement of the Maine Human Rights Act while the case proceeds. A third judge on the panel died before the opinion was released. The court issued a similar ruling the same day in St. Dominic Academy v. Makin, a case involving a Catholic school.

The Maine Human Rights Act applies several nondiscrimination provisions to private schools receiving public tuition funds. Schools that violate the law may face lawsuits from the Maine Human Rights Commission or private individuals, as well as possible injunctions and monetary damages.

One provision prevents participating schools from discriminating on the basis of religion in areas such as admissions, academics, and financial aid. Another bars discrimination based on sexual orientation or gender identity. Religious schools that do not receive public funding are exempt from the second rule.

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For Bangor Christian School, compliance could prevent administrators from enforcing some of their existing policies. Dys offered the example of a male student who identifies as transgender and requests access to female restrooms or locker rooms. Under Maine’s rules, he argued, the school could face legal consequences for enforcing its sex-specific policies.

The appeals court concluded that the sexual orientation and gender identity provision did not violate the Constitution. It also found that certain Bangor Christian School policies, including church-member tuition discounts and consideration of a prospective student’s “spiritual fit,” violated the law’s religious nondiscrimination requirements.

The court reached a different conclusion regarding Maine’s Religious Expression Rule, which requires schools that allow religious expression to treat all religions equally. The panel held that this provision violated Crosspoint Church’s free exercise rights and sent the issue back to the district court with instructions to provide an injunction.

The case is the latest chapter in a long legal dispute over Maine’s tuition assistance program. Since 1980, the state has helped families in areas without public schools pay tuition at private institutions. Religious schools were excluded until the U.S. Supreme Court ruled in Carson v. Makin in 2022 that Maine’s “nonsectarian” requirement violated the First Amendment.

The Supreme Court found that Maine could not exclude otherwise eligible schools from a generally available public benefit simply because they provided religious instruction. Parents connected to Bangor Christian School were among those who challenged the policy.

Before the Supreme Court issued its ruling, Maine lawmakers amended state law to allow religious schools into the program while requiring participating schools to comply with regulations covering sexual orientation and gender identity. Crosspoint Church argues that those changes were designed to keep schools like Bangor Christian School from participating unless they abandoned important parts of their religious mission.

Maine Attorney General Aaron Frey defended the state’s position in 2023, arguing that the schools involved promoted one religion, refused to admit gay and transgender students, and used religious standards when hiring employees.

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Crosspoint Church responded that attaching such conditions to an otherwise generally available benefit amounted to a “poison pill.” Its lawsuit argued that forcing the school to choose between public tuition funds and the exercise of its religious beliefs placed an unconstitutional burden on its faith.

In February 2024, U.S. District Judge John Woodcock rejected that argument. He ruled that Maine’s education-related nondiscrimination rules were neutral, generally applicable, and reasonably connected to a legitimate government interest.

Dys said both the district court and the appeals court relied too heavily on the neutrality standard established by the Supreme Court’s 1990 decision in Employment Division v. Smith. He argued that the First Amendment requires stronger protection when the government conditions access to a public benefit on restrictions affecting religious exercise.

First Liberty Institute is now considering its next step. The organization may ask the full First Circuit to review the case or appeal directly to the U.S. Supreme Court.

“We are disappointed that though the First Circuit acknowledges that religious institutions can teach what they believe, it would then refuse to allow conduct consistent with those beliefs,” Dys said.

He added that religious schools play an important role in American society and argued that government officials should not punish them for operating according to their faith. According to Dys, further review will be necessary to determine whether Maine can legally require religious schools to set aside their beliefs as a condition of receiving public tuition funds.

The Western Journal