St. Dominic Academy v. Makin – Separation of Church and State

Crosspoint Church sought an exemption from Maine law so it could discriminate against students while receiving state funds. The right to discriminate has never been recognized by any court, and any school that wants to participate in state educational programs must play by the same rules as all others.

Similar to Crosspoint Church, St. Dominic Academy sued the State of Maine, arguing it should be allowed to receive public education funding while also being allowed to discriminate against LGBTQ students. Institutions that want to participate in public education programs must play by the same rules as all others.

It is a foundational principle in civil rights law that the government may require compliance with anti-discrimination provisions in its distribution of public funds. In June 2023, St. Dominic Academy and a group of parents filed suit challenging this principle, arguing that a private religious school should be able to accept government funds while discriminating against LGBTQ students.

Maine is one of a few states with a school tuition program that pays for students to attend approved private schools in districts where no public school exists. To be eligible for the tuition program, schools must comply with the Maine Human Rights Act’s (MHRA) anti-discrimination provisions, which prohibit discrimination on the basis of religion, sexual orientation, and gender identity, among other protected characteristics.

In its 2022 Carson v. Makin decision, the U.S. Supreme Court held that religious schools may receive public funds by participating in the program. Before this decision, taxpayer funds could not be used for religious educational activity in Maine.

St. Dominic sought to participate in the school tuition program, but requested an exemption from the anti-discrimination requirements so it could discriminate in its admissions decisions. In its suit, St. Dominic argued that requiring compliance with the MHRA’s anti-discrimination protections violated its rights under the Free Exercise Clause, among others.

Private religious entities have long been exempted from non-discrimination laws, but St. Dominic wanted to have it both ways. The school wanted to receive public education funding while also remain exempt from non-discrimination laws.

Maine’s public funding is designed to provide education for students consistent with the state’s obligation to provide a free education to all, regardless of their identity. The state must ensure students receive a baseline education, so schools participating in the state tuitioning program must teach specific courses from the state-approved curriculum, just like all public schools. The state must also provide free education to all, so it has an interest in eliminating discrimination based on religion, sexual orientation, and gender identity and expression to ensure that publicly funded schools are open to all students. St. Dominic Academy's discriminatory policies are in direct conflict with students’ right to an equal education.

In August 2024, the United States District Court for the District of Maine denied St. Dominic’s motion for a preliminary injunction, which would have blocked enforcement of the MHRA during litigation and allowed the school to discriminate.

The court found that although Maine’s anti-discrimination law is not generally applicable, it survives constitutional scrutiny. The district court explicitly recognized that Maine has a compelling interest in eliminating discrimination within publicly funded institutions because the state is required to provide a free education to all students.

St. Dominic appealed to the United States Court of Appeals for the First Circuit in August 2024. We filed friend-of-the-court briefs in both cases before the First Circuit arguing that the schools must play by the same rules as all other institutions that receive public education funding.

Learn more about Crosspoint Church v. Makin here.

Oral arguments before the First Circuit took place on Tuesday, January 7, 2025, in Boston. Listen to the arguments here.

The court ruled against St. Dominic Academy and Crosspoint Church, finding that the Maine Human Rights Act protects students from discrimination based on faith, gender identity, and sexual orientation at private schools receiving state funds.

The court wrote that, “in short, the State is simply saying 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.” The court also wrote that “Crosspoint seeks to refuse admission to (and expel) any student who is gay or transgender, irrespective of that student's speech. Although such refusal may express Crosspoint's views regarding sexual orientation and gender identity . . . that does not transform the rule into a speech regulation.”