Crosspoint is a Christian church incorporated as a nonprofit corporation under Maine law and located in Bangor, Maine. Bangor Christian Schools (BCS) is a private, Christian K-12 school affiliated with Crosspoint.
Under Maine law, every person is entitled to a free public education. In areas that are sparsely populated, the government will pay the tuition for students to attend private school if there are no closely located public schools. Under this law, a private school may be approved for receipt of public funds only if it is nonsectarian.
In 2018, three families, including two families whose children attended BCS, filed suit to challenge the sectarian exclusion, claiming that it violated the First Amendment’s Free Exercise Clause. That case was Carson v. Makin (2022) ___U.S.___ [142 S.Ct. 1987, 213 L.Ed.2d 286]. In 2022, the U.S. Supreme Court held that Maine’s sectarian exclusion violated the Free Exercise Clause because it operated to identify and exclude otherwise eligible schools on the basis of their religious excise. Specifically, the Supreme Court held that BCS was disqualified for the generally available benefit solely because of its religious character. By conditioning the availability of benefits in that manner, the Supreme Court concluded that Maine’s tuition assistance program effectively penalized the free exercise of religion. As a result, the sectarian exclusion is now unenforceable.
While the Carson case was pending, the Maine Legislature enacted amendments to the Maine Human Rights Act (MHRA), adding gender identity, religion, ancestry, and color as protected classes. The amendments also narrowed the religious exception to state that religious corporations, associations, or societies that do not receive public funding were not required to comply with the section as it relates to sexual orientation or gender identity.
When Crosspoint filed its complaint, the MHRA exempted single-sex schools, even those participating in the tuition program, from its prohibition on discriminating on the basis of race, color, ancestry, national origin, sex, religion, sexual orientation, and gender identity. In June, 2023, the MHRA was amended to remove the single-sex school exclusion from the definition of “educational institution.” Crosspoint alleged that this change was designed to operate as a workaround to Carson to exclude BCS from the tuition program.
BCS is a religious school that believes that marriage is only a union between one man and one woman and that all sexual activity that lies outside of the definition of marriage is wrong. BCS’s code of conduct prohibits students from engaging in immoral conduct, including sexual activity outside of marriage, or identifying as a gender other than their biological sex. Crosspoint Church employees, including BCS staff, must be co-religionists—that is, they must be in agreement with Crosspoint’s Statement of Faith and engage in religious practice consistent with the Church’s spiritual standards.
Crosspoint filed for a preliminary injunction, arguing that the changes to the MHRA violated the Free Exercise Clause, the Establishment Clauses, and the Free Speech Clause of the First Amendment.
Crosspoint argued that the changes to the MHRA violated the Free Exercise Clause because the timing and structure of the changes showed that its purpose was to preemptively exclude them from the tuition program in order to moot Carson. Alternatively, Crosspoint argued that because the changes exempted single-sex schools from the antidiscrimination provisions, it was not narrowly tailored to achieve a compelling government interest.
Crosspoint argued that the changes to the MHRA violated the Establishment and Free Exercise Clauses by prohibiting them from hiring only co-religionists. Crosspoint argued that MHRA’s plain language protected them from hiring only co-religionists for its ministries, including BCS, due to the ministerial exception.
Crosspoint argued that the changes to the MHRA violated the Free Speech Clause because it was designed to stop them from educating students with Crosspoint’s religious perspective as a condition of participating in the tuition program. Crosspoint argued that imposing financial burdens because of Crosspoint’s teaching that reflects its religious perspective was unconstitutional.
The Defendants (the Commissioner of the Maine Department of Education and the two Commissioners of the Maine Human Rights Commission) argued that Crosspoint’s claim was not ripe because it was predicated on a list of hypothetical events, including Crosspoint applying for funding, being accepted, denying admission to a person in a protected class, and then facing an MHRA discrimination harm. There was no imminent threat of enforcement or lawsuit.
If ripe, Defendants argued that Crosspoint was not entitled to a preliminary injunction because it was not likely to prevail on the merits—admitting students belonging to protected classes would not burden their religious practices, as BCS would still be free to teach and say whatever it wishes. It simply would not be allowed to prevent students from receiving the education BCS chooses to deliver.
For the employment issue, the Defendants argued that the ministerial exception may apply, but could not be applied unless there was a facial challenge to the statute. Finally, for the free speech claim, the Defendants argued that Crosspoint was free to say whatever it wished, it just could not exclude willing listeners for discriminatory reasons.
The Court concluded that, as a threshold matter, the claim was ripe. The Court reasoned that Crosspoint desired to apply for Maine’s tuition program, a benefit the Supreme Court recently ruled the state could not deny to sectarian institutions, such as Crosspoint. The amendment to the MHRA, prohibiting educational institutions from discriminating on sexual orientation or gender identity, was in conflict with Crosspoint’s discriminatory hiring practices. The Court concluded that if Crosspoint availed itself to the tuition assistance program, it would risk a credible threat that the MHRA would be enforced against its religious practices.
For Crosspoint’s Free Exercise Claims, the Court concluded that Maine’s amendments to the MHRA were done for legitimate interests, namely, preventing discrimination in education. Maine’s decision to add further protections to the MHRA aligned with similar Maine laws on employment, housing, and education, which likewise prohibit sexual orientation/gender identity discrimination in employment, housing, and education, but also generally exempt religious organizations that do not receive public funding. The Court found that the MHRA provisions were reasonably related to the state’s interest in preventing discrimination and applied to all schools receiving public funding.
For Crosspoint’s employment discrimination claim, the Court concluded that there was no controversy between the parties, as the parties agreed that all religious organizations are allowed to give employment preference to individuals of the same religion and may require all applicants and employees to conform to the organization’s religious tenets.
For Crosspoint’s Free Speech claim, the Court determined that the plain text of the MHRA did not limit Crosspoint’s ability to teach from a religious perspective—the MHRA limited conduct, not speech.
The Court concluded that Crosspoint was not entitled to a preliminary injunction.
Note: At the end of this opinion, the Court acknowledged that Crosspoint raised important legal questions. The Court noted that despite the students’ victory in Carson v. Makin, the Maine Legislature and Maine Attorney General largely deprived Crosspoint and similar religious schools from the “fruit of their victory.” The Court noted that the case presents novel constitutional questions and framed the opinion as a prelude to the Court of Appeals for the First Circuit for a more authoritative ruling. In other words, LCW anticipates that this case will be appealed and will monitor this case for further developments.
Crosspoint Church v. Makin (D.Me. Feb. 27, 2024) 2024 U.S.Dist.LEXIS 32975.