Forget Carson! Remember the Maine Human Rights Act.

Maine finds a way to undercut Carson v. Maikin.

On its face, Carson v. Maikin seems to be a resounding victory for religious liberty and school choice in Maine. The Supreme Court held that the state cannot exclude two Christian schools from a tuition payment program. Open up the coffers for Bangor Christian and Temple Academy? Not so fast.

Justice Breyer observed in his dissent that there may be another conflict between the state and the Christian schools.

Legislators also recognized that these private schools make religiously based enrollment and hiring decisions. Bangor Christian and Temple Academy, for example, have admissions policies that allow them to deny enrollment to students based on gender, gender-identity, sexual orientation, and religion, and both schools require their teachers to be Born Again Christians. Legislators did not want Maine taxpayers to pay for these religiously based practices—practices not universally endorsed by all citizens of the State—for fear that doing so would cause a significant number of Maine citizens discomfort or displeasure. The nonsectarian requirement helped avoid this conflict—the precise kind of social conflict that the Religion Clauses themselves sought to avoid.

Unsurprisingly, Maine found another way to avoid that "social conflict." Last year, the legislature revised the Maine Human Rights Act. Now, all private schools that choose to accept public funds must comply with the non-discrimination law. Specifically, the schools will be barred from discriminating on the basis of sexual orientation and gender identity. The legislature knew quite well that this change would force the two Christian schools to opt-out of any public financing.

Justice Breyer alluded to this fact in his dissent:

Nor do the schools want Maine in this role. Bangor Christian asserted that it would only consider accepting public funds if it "did not have to make any changes in how it operates." Temple Academy similarly stated that it would only accept state money if it had "in writing that the school would not have to alter its admissions standards, hiring standards, or curriculum." The nonsectarian requirement ensures that Maine is not pitted against private religious schools in these battles over curriculum or operations, thereby avoiding the social strife resulting from this state-versus-religion confrontation. By invalidating the nonsectarian requirement, the majority today subjects the State, the schools, and the people of Maine to social conflict of a kind that they, and the Religion Clauses, sought to prevent

Shortly after Carson was decided, the Maine Attorney General put out a press release citing this new legislation.

"I am terribly disappointed and disheartened by today's decision," said AG Frey.  "Public education should expose children to a variety of viewpoints, promote tolerance and understanding, and prepare children for life in a diverse society.   The education provided by the schools at issue here is inimical to a public education.  They promote a single religion to the exclusion of all others, refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff.  One school teaches children that the husband is to be the leader of the household.   While parents have the right to send their children to such schools, it is disturbing that the Supreme Court found that parents also have the right to force the public to pay for an education that is fundamentally at odds with values we hold dear.  I intend to explore with Governor Mills' administration and members of the Legislature statutory amendments to address the Court's decision and ensure that public money is not used to promote discrimination, intolerance, and bigotry."

While the Court's decision paves the way for religious schools to apply to receive public funds, it is not clear whether any religious schools will do so.   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.

In the New York Times, Aaron Tang observed that this statute provides a workaround to Carson.

"The legislative fix made by Maine lawmakers offers a model for lawmakers elsewhere who are alarmed by the court's aggressive swing to the right. Maine's example shows that those on the losing end of a case can often outmaneuver the court and avoid the consequences of a ruling."

And other states may follow suit.

Other states should follow Maine's lead. A handful of blue states — including Illinois, Maryland, Nevada and Vermont — provide vouchers or similar tax-credit scholarships to low-income students to enroll in private schools. None of them, however, enacted a statute prohibiting funds-receiving private schools from discriminating against L.G.B.T.Q. students. Legislation that would do so is pending in Maryland's legislature, the General Assembly. Lawmakers there should quickly enact it. Other states should also prohibit such discrimination.

There still may be more litigation:

Michael Bindas, senior attorney for the Institute for Justice, said the attorney general isn't paying close attention to the Supreme Court's commitment to religious liberty in recent years.

"It was an erroneous opinion of the Maine attorney general that embroiled the state in five lawsuits spanning three decades and that culminated in the Supreme Court's ruling against the state," Bindas said Thursday in a statement. "The current attorney general seems to not have learned any lessons from that experience."

If the state truly intends to use the state law to create another obstacle, then more litigation will be inevitable, said Carroll Conley, executive director of the Christian Civic League of Maine.

The effect of this ruling may be limited in the context of school tuition programs for Maine. But the elimination of the status/use distinction (which I will discuss in another post) was huge.