The court and the church meet againgettyIn June 2022 the Supreme Court ruled in Carson v. Makin that Maine must extend its school voucher to include religious schools. But while that decision set a precent cited by many advocates arguing for public funding of private religious schools, it left one hurdle for those schools to overcome. For now, the United States Court of Appeals for the First Circuit has ruled most of that the hurdle will stay in place. Carson v. Makin spun from a peculiarity of Maine education law. Because not all small towns in Maine can afford to run their own school system, the state allows for vouchers for students from one community without a school to attend in a community that has one. But the law restricted the use of those vouchers to schools that did not venture outside the traditional, secular model. Lower courts agreed that “Maine’s tuition program does not act as a penalty for religious exercise, it merely declines to subsidize it.”In June of 2022, the Supreme Court disagreed, saying that if the state paid for a secular school option, it must also pay for the religious version. Like other cases in this sequence, the decision seemed to elevate the free exercise clause of the First Amendment over the establishment clause.It seemed like a clear win for fans of delivering public funds to private religious schools. But in Maine, there was a wrinkle. Maine got ahead of the Supreme Court by passing an amendment to the state’s anti-discrimination law, the Maine Human Rights Act (MHRA), expressly forbidding certain types of discrimination by any school that accepts public funds. The Supreme Court had ruled that the state could not exclude private religious schools simply because they were religious; it did not say that they state could not set terms for the schools’ participation.The schools in Carson v. Makin announced they would not accept vouchers if those public dollars came with anti-discrimination strings attached. Lawsuits followed, arguing the religious schools’ right to discriminate against both students and staff based on religion or LGBTQ status while still receiving public funding. MORE FOR YOUDistrict courts found in favor of the state, and two plaintiffs (St. Dominic Academy and Crosspoint Church) took to the Court of Appeals, asking for an injunction against the MHRA. They were largely denied.The decision includes wins for both sides. The court found that requiring a private religious school to accept expression of all religious viewpoints within student and faculty would interfere with the school’s primary mission. The school, the court argues, “is likely to prevail on its Free Exercise Clause challenge to the Religious Expression Rule.” Religious discrimination is another matter. “The state is simply saying,” says the court, "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." Just because a state’s rule puts a burden on a school’s religious practices, that does not mean the rule “imposes a burden solely because the school is religious.”Citing a tweet by a Maine legislator about the addition of LGBTQ protections to the MHRA, the plaintiffs argue that this shows hostility toward religious practices and schools. The court disagrees:In so arguing, St.Dominic appears to conflate animus toward a practice --discrimination --with animus toward a religious group that engages in that practice. We do not believe government actors must avoid criticizing any practice in which any religious group engages or else be accused of harboring impermissible religious animus. "Just as combatting religious discrimination qualifies as a legitimate governmental pursuit, so too combatting sexual-orientation and gender-identity discrimination rises to that level," the court found.As is typical of such cases, the real battle was behind large, well-funded adversaries. The ACLU stood up for the state of Maine, which was represented by the office of the Attorney General, while The Becket Fund for Religious Liberty and First Liberty Institute argued for the right of private religious schools to discriminate while accepting public funds. They have suggested, reports Sean Scott for the Maine Monitor, that taking the case all the way to the Supreme Court “may become necessary.”These particular bricks in the church and state wall are already likely to be tested by the Supreme Court. The court has agreed to take up the case of a Colorado Catholic preschool program that has asked the state to exempt it from rules forbidding discrimination against LGBTQ children and parents. In his dissent on Makin, Justice Breyer warned of the direction these decisions pointed:What happens once “may” becomes “must”? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education? What other social benefits are there the State’s provision of which means—under the majority’s interpretation of the Free Exercise Clause—that the State must pay parents for the religious equivalent of the secular benefit provided?Justice Sotomayor offered the last word on this new shift:In 2017, I feared that the Court was “lead[ing] us . . . to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.” Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.It may also be a place in which no discrimination is illegal if exercised by people who came religious immunity, and taxpayers must not only tolerate that intolerance, but must fund it--even if they are the object of it.