A federal appeals court has ruled that Maine can require private schools to adopt the state's LGBT policies to qualify for a tuition assistance program.

The 5th U.S. Circuit Court of Appeals ruled last week in Crosspoint Church v. A. Pender Makin et al, weighing whether Crosspoint’s Bangor Christian School (BCS) must follow the Maine Human Rights Act for families enrolled there to qualify for a state tuition assistance program.

The panel denied Crosspoint’s request for a permanent injunction — a court order that would have permanently blocked the law from applying to the school. Kayatta wrote that “Crosspoint has not shown that specific anti-BCS animus motivated” the state policy.

However, the panel sided with Crosspoint on its concerns about the state’s religious expression rule, finding that it violated the church’s right to free exercise of religion. The appeals court sent the case back to the district court for further proceedings consistent with Kayatta’s opinion.

“[W]e conclude Crosspoint has not succeeded on its free-exercise claims against the Religious Nondiscrimination Rule or the Sexual Orientation and Gender Identity Nondiscrimination Rule,” wrote Kayatta.

“Crosspoint has failed to convince us that the Sexual Orientation and Gender Identity Nondiscrimination Rule should receive strict scrutiny as a content- or viewpoint-based regulation of speech.”

Jeremy Dys, senior counsel for First Liberty Institute (FLI), which helped represent the church, said in a statement released Tuesday that he was disappointed with the panel’s ruling.

“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,” stated Dys.

“Religious education plays a critical role in our diverse society, but Maine’s leadership will not tolerate conduct consistent with those religious beliefs. As the U.S. Supreme Court has repeatedly said, punishing religious institutions for being religious is odious to our Constitution.”

FLI plans to appeal the decision.

In 2022, the U.S. Supreme Court ruled 6-3 in Carson v. Makin that Maine could not lawfully prevent parents from using a state tuition program to send their children to Christian schools.

The lawsuit was driven by parents from Bangor Christian who had sued Maine over a ban on tuition assistance for children sent to a private school with sectarian aspects in its curriculum.

After the Supreme Court ruling, Maine Attorney General Aaron Frey said BCS remained ineligible for the program because of its theologically conservative stance on LGBT issues.

“The education provided by the schools at issue here is inimical to a public education,” claimed Frey, a Democrat, in a statement in 2023. “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.”

Frey vowed 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.”

In response, Crosspoint sued state officials in March 2023 over the requirement that the private school follow Maine’s LGBT antidiscrimination policy, calling it a “poison pill.”

“Putting Plaintiff to the choice of participating in a generally available benefit program or surrendering its constitutionally protected religious exercise penalizes its religious exercise and constitutes a substantial burden,” the lawsuit read.

In February 2024, U.S. District Judge John Woodcock, a George W. Bush appointee, denied a preliminary injunction — a temporary block on the law while the case continued — that Crosspoint had requested, ruling that the lawsuit was unlikely to succeed.

“The Court determines that the educational antidiscrimination provisions do not violate the Free Exercise Clause because they are neutral, generally applicable, and rationally related to a legitimate government interest,” wrote Woodcock at the time.

“The Court concludes further that the educational provisions do not violate the Free Speech Clause because they regulate conduct, not speech. Finally, the Court concludes that the employment provisions do not proscribe any constitutionally protected conduct.”

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