United States Court of Appeals
For the First Circuit
No. 24-1739
ST. DOMINIC ACADEMY, d/b/a Roman Catholic Bishop of Portland, a
corporation sole; ROMAN CATHOLIC BISHOP OF PORTLAND, a
corporation sole; KEITH RADONIS, on their own behalf and as next
friend of children K.Q.R., L.R.R., and L.T.R.; VALORI RADONIS,
on their own behalf and as next friend of children K.Q.R.,
L.R.R., and L.T.R.,
Plaintiffs, Appellants,
v.
A. PENDER MAKIN, in the personal capacity and official capacity
as Commissioner of the Maine Department of Education; JEFFERSON
ASHBY, in the personal capacity; MEGAN SANDERS,* in the official
capacity as Commissioner of the Maine Human Rights Commission;
EDWARD DAVID, in the personal capacity and official capacity as
Commissioner of the Maine Human Rights Commission; JULIE ANN
O'BRIEN, in the personal capacity and official capacity as
Commissioner of the Maine Human Rights Commission; MARK WALKER,
in the personal capacity and official capacity as Commissioner
of the Maine Human Rights Commission; THOMAS L. DOUGLAS, in the
personal capacity and official capacity as Commissioner of the
Maine Human Rights Commission,
Defendants, Appellees.
* Plaintiffs originally named Jefferson Ashby as a defendant
in both his personal capacity and his official capacity as a
Commissioner of the Maine Human Rights Commission. Sometime around
February 2024, Megan Sanders replaced Jefferson Ashby on the Maine
Human Rights Commission. Commissioners, Me. Hum. Rts. Comm'n,
https://www.maine.gov/mhrc/about/commissioners
[https://perma.cc/AQ4H-47JF] (last visited Apr. 28, 2026). As to
the claims against Ashby in his official capacity, we substitute
Sanders pursuant to Federal Rule of Appellate Procedure 43(c)(2).
The claims against Ashby in his personal capacity remain.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Montecalvo and Kayatta,**
Circuit Judges.
Adèle Auxier Keim, with whom Mark L. Rienzi, Benjamin A.
Fleshman, Michael J. O'Brien, Amy Ren, The Becket Fund for
Religious Liberty, James B. Haddow, and Petruccelli, Martin &
Haddow LLP were on brief, for appellants.
Michael C. Gilleran and FisherBroyles LLP on brief for Seymour
Institute for Black Church and Policy Studies and Religious Freedom
Institute as amici curiae supporting appellants.
Edward M. Wenger, Jonathan P. Lienhard, and Holtzman Vogel
Baran Torchinsky & Josefiak PLLC on brief for Herzog Foundation as
amicus curiae supporting appellants.
Thomas M. Fisher, Bryan Cleveland, and EdChoice Legal
Advocates on brief for EdChoice, Inc. as amicus curiae supporting
appellants.
Mark A. Lippelmann, Jeremiah Galus, Ryan Tucker, David A.
Cortman, and Alliance Defending Freedom on brief for Christian
Schools International, American Association of Christian Schools,
Association for Biblical Higher Education, International Alliance
for Christian Education, and Cardinal Newman Society as amici
curiae supporting appellants.
Joshua Blackman, Josh Blackman, LLC, John S. Whitman, and
Richardson, Whitman, Large & Badger on brief for Jewish Coalition
for Religious Liberty as amicus curiae supporting appellants.
John A. Meiser, Meredith Holland Kessler, Lindsay and Matt
Moroun Religious Liberty Clinic, Nicole Stelle Garnett, and Notre
Dame Education Law Project on brief for National Council of Young
Israel and Notre Dame Education Law Project as amici curiae
supporting appellants.
Christopher C. Taub, Chief Deputy Attorney General of Maine,
with whom Aaron M. Frey, Attorney General of Maine, and Sarah A.
** Judge Selya heard oral argument in this case and
participated in the initial semble thereafter. His subsequent
death ended his involvement in this case. The remaining two
panelists issued this opinion pursuant to 28 U.S.C. § 46(d).
Forster, Assistant Attorney General of Maine, were on brief, for
appellees.
Karen L. Loewy, Kenneth D. Upton, Jr., Lambda Legal Defense
and Education Fund, Inc., Gary D. Buseck, Mary L. Bonauto, and
GLBTQ Legal Advocates & Defenders on brief for GLBTQ Legal
Advocates & Defenders and Lambda Legal Defense and Education Fund,
Inc. as amici curiae supporting appellees.
Michelle Fraling, Aditi Fruitwala, Daniel Mach, Heather
Weaver, American Civil Liberties Union Foundation, Carol Garvan,
Zachary L. Heiden, Anahita Sotoohi, American Civil Liberties Union
of Maine Foundation, Alex J. Luchenitser, Alexandra Zaretsky, and
Americans United for Separation of Church and State on brief for
American Civil Liberties Union, American Civil Liberties Union of
Maine, and Americans United for Separation of Church and State as
amici curiae supporting appellees.
Adam J. Hunt, Tamara Wiesebron, Jenny Xin, Justin Kareem
Rezkalla, Morrison & Foerster LLP, Robert Kim, Jessica Levin, Wendy
Lecker, Education Law Center, Kristen L. Hollar, and National
Education Association on brief for Public Funds Public Schools,
National Education Association, National School Boards
Association, American Federation of Teachers, In the Public
Interest, Freedom from Religion Foundation, American Atheists,
Inc., Council of Parent Attorneys and Advocates, Inc., Network for
Public Education, Pastors for Children, Disability Rights Maine,
and Maine Education Association as amici curiae supporting
appellees.
July 2, 2026
KAYATTA, Circuit Judge. The State of Maine ("Maine" or
the "State") subjects in-state K–12 schools to a set of
antidiscrimination rules codified in the Maine Human Rights Act
(MHRA), which is enforced by the Maine Human Rights Commission
(MHRC) and by private litigants. Primarily, these rules apply
only to those schools that receive public funding. Two lawsuits
challenge these rules as applied to religious schools, taking issue
with the MHRA's impact on school policies that draw lines based on
religious identity or expression or that discriminate based on
sexual orientation or gender identity.
In one suit -- the one on appeal here -- St. Dominic
Academy (a Catholic school), the Roman Catholic Diocese of Portland
(which runs St. Dominic Academy), and Keith and Valori Radonis (on
behalf of their children, who intended to attend St. Dominic
Academy) sought, as relevant here, declaratory and injunctive
relief against the Commissioner of the Maine Department of
Education and the five Commissioners of the MHRC (collectively,
the "Commissioners"). In the other suit, Crosspoint Church
("Crosspoint"), which runs a Christian K–12 school, sought similar
relief against the same defendants. The district court denied
injunctive relief in both suits, prompting two separate appeals.
We heard oral argument in both cases on the same day.
The two appeals turn on similar facts and, for the most
part, warrant similar resolutions. Because the briefing in the
- 4 -case at bar raises more preserved arguments than does Crosspoint's
briefing, we use this case to analyze the legal issues shared by
the two cases. In our opinion in Crosspoint's appeal -- which we
issue simultaneously with this opinion -- we resolve two final
arguments unique to Crosspoint. Our resolution of Crosspoint's
appeal otherwise largely relies upon the reasoning of this opinion.
As the remainder of this opinion explains, we affirm in
part and reverse in part the district court's order denying
plaintiffs' motion for a preliminary injunction.
I. Statutory Background
Plaintiffs' constitutional challenge aims at the
intersection of two of Maine's statutory frameworks. The first of
these statutes is the State's tuition-assistance program, codified
in Title 20-A of the Maine Revised Statutes, which allows children
to attend private elementary and secondary schools at public
expense under certain circumstances. See Me. Stat. tit. 20-A,
§§ 5203(4), 5204(4). The second of these statutes is the MHRA,
contained in Title 5 of the Maine Revised Statutes, which prohibits
discrimination on certain grounds in employment, housing,
education, and other areas. See Me. Stat. tit. 5, §§ 4551–4634.
Because the MHRA's education provisions only apply to a school if
it receives public funding, see id. § 4553(2-A), a private school
in the State that forgoes tuition assistance may operate -- for
- 5 -the most part1 -- free of the MHRA's strictures. By contrast, a
private school that accepts tuition assistance will be subject to
the MHRA's antidiscrimination provisions. We begin by describing
each of these two statutory frameworks.
A. Maine's Tuition-Assistance Program
Under State law, a school administrative unit "that
neither maintains a [public] school nor contracts for [public]
school privileges . . . shall pay the tuition . . . at the public
school or the approved private school of the parent's choice at
which the student is accepted." Me. Stat. tit. 20-A, § 5204(4)
(addressing secondary schools); see also id. § 5203(4) (same for
elementary schools). As of the 2024–25 school year, the program
allowed a maximum tuition of $12,066.94 for in-state elementary
schools and $14,080.88 for in-state and out-of-state secondary
schools.2 See id. §§ 5804–5806, 5808 (setting tuition rates at
roughly the average cost of educating a student in the State).
1 For example, certain employment provisions of the MHRA
apply regardless of public funding. See infra Section I.B.1.
2 Tuition Rates, Me. Dep't of Educ.,
https://www.maine.gov/doe/funding/reports/tuition
[https://perma.cc/2XMY-9LRB] (last visited July 24, 2025). The
Maine Department of Education website does not indicate whether
any out-of-state elementary schools received tuition-assistance
payments in the 2024–2025 school year and, if so, at what tuition
rate.
- 6 -To participate in the program, a private school need not
be located in Maine, id. § 5808,3 but it must comply with basic
requirements concerning, among other things, academic achievement,
health and safety, and records maintenance. See id. § 2951. In
1981, the State legislature made it a requirement that
participating schools be "nonsectarian." An Act to Revise the
Education Laws, Me. Pub. L. 1981, ch. 693, sec. 5, 1981 Me. Laws
2063, 2177 (codified at Me. Stat. tit. 20-A, § 2951(2) (2018)).
In 2018, three couples, the parents of school-aged
children in Maine, challenged this nonsectarian requirement in
federal court. Complaint, Carson v. Makin, 401 F. Supp. 3d 207
(D. Me. 2019). Both the district court and this court rejected
their challenge. Carson, 401 F. Supp. 3d at 212, aff'd, 979 F.3d
21 (1st Cir. 2020). In February 2021, they sought review in the
Supreme Court. Petition for Writ of Certiorari, Carson v. Makin,
596 U.S. 767 (2022). The Court granted certiorari in July 2021,
Carson v. Makin, 141 S. Ct. 2883 (2021) (mem.), and held in June
2022 that the nonsectarian requirement violated the First
Amendment's Free Exercise Clause, thus reversing this court's
decision, Carson, 596 U.S. at 789. Consequently, the State could
3As of the 2024–25 school year, Maine was paying tuition to
four out-of-state schools, as compared to twenty-five in-state
private secondary schools, along with at least another eight
in-state private elementary schools (not counting those seemingly
affiliated with secondary schools already included in the count).
Tuition Rates, supra.
- 7 -no longer enforce the nonsectarian requirement, and, in May 2025,
the State legislature repealed that requirement. An Act to Update
the Laws Regarding Education, Me. Pub. L. 2025, ch. 112, sec. 5,
2025 Me. Laws 305, 306 (codified at Me. Stat. tit. 20-A,
§ 2951(2)). Other than this alteration, the relevant portions of
the tuition-assistance program have remained substantively
unchanged since 2018.
B. The Maine Human Rights Act
The MHRA comprises the State's statutory
nondiscrimination regime. Broadly speaking, it prohibits
discrimination on certain grounds in employment, housing,
education, public accommodations, and the extension of credit. We
first outline the MHRA's coverage and enforcement, then address a
recent set of amendments to the MHRA, and finally describe the
specific provisions at issue here.
1. Coverage and Enforcement
As originally enacted in 1971, the MHRA barred
"discrimination in employment, housing or access to public
accommodations on account of race, color, religion, ancestry or
national origin." Maine Human Rights Act, Me. Pub. L. 1971,
ch. 501, § 1, 1971 Me. Laws 1001, 1001 (codified at Me. Stat.
tit. 5, § 4552 (1972)). Over the years, the State expanded the
MHRA to cover discrimination in education. An Act to Insure State
Enforcement of Equal Opportunity in State-supported Educational
- 8 -Programs, Me. Pub. L. 1983, ch. 578, sec. 2, 1983 Me. Laws 2259,
2260 (codified at Me. Stat. tit. 5, § 4553(10)(F)).4 It also added
sex, disability, sexual orientation, and gender identity5 as
prohibited grounds of discrimination. An Act to Prevent Sex
Discrimination under Human Rights Act, Me. Pub. L. 1973, ch. 347,
sec. 1, 1973 Me. Laws 631, 631 (codified as amended at Me. Stat.
tit. 5, § 4552); An Act to Prevent Physical Handicap
Discrimination under Human Rights Act, Me. Pub. L. 1973, ch. 705,
sec. 1, 1973 Me. Laws. 76, 76 (codified as amended at Me. Stat.
tit. 5, § 4552); An Act to Extend Civil Rights Protections to All
People Regardless of Sexual Orientation, Me. Pub. L. 2005, ch. 10,
secs. 1, 3, 2005 Me. Laws 70, 70–71 (codified as amended at Me.
Stat. tit. 5, §§ 4552, 4553(9-C)).
4At some point, the legislature added the "extension of
credit" as another realm protected by the MHRA. Me. Stat. tit. 5,
§ 4552. The parties essentially ignore the MHRA provisions
regarding public accommodations and credit, so we do the same.
5Gender identity was originally included as part of the
statutory definition of sexual orientation. See An Act to Extend
Civil Rights Protections to All People Regardless of Sexual
Orientation, Me. Pub. L. 2005, ch. 10, sec. 3, 2005 Me. Laws 70,
71 (codified at Me. Stat. tit. 5, § 4553(9-C)) (2005)). In 2021,
sexual orientation and gender identity were separated into
distinct classifications. See An Act to Improve Consistency in
Terminology and within the Maine Human Rights Act, Me. Pub.
L. 2021, ch. 366, 2021 Me. Laws 761 (codified as amended in
scattered sections of Me. Stat. tit. 5). Although Maine law now
recognizes them as distinct bases, for ease of reference, we use
the term "sexual orientation and gender identity discrimination"
when talking about these statutory protections.
- 9 -A covered entity that violates the MHRA exposes itself
to civil liability. "Any aggrieved person" or "any employee of
the [MHRC]" may file a complaint of discrimination with the MHRC.
Me. Stat. tit. 5, § 4611. The MHRA requires the MHRC to
investigate such complaints, id. § 4612(1)(B), and empowers it to
file suit if it "finds reasonable grounds to believe that unlawful
discrimination has occurred," id. § 4612(4)(A). Alternatively,
aggrieved persons may file suit on their own behalf. Id. § 4621.
For violations of the education provisions, available remedies
include injunctive relief and civil monetary damages up to $100,000
for repeat violators. Id. § 4613(2)(B)(1), (7). Similar remedies
exist for employment-discrimination actions against employers with
more than fourteen employees. Id. § 4613(2)(B)(1), (8).
The MHRA does not apply to all schools. In particular,
the MHRA's education provisions apply only to "any public school
or educational program," "any public postsecondary institution,"
and "any private school or educational program approved for tuition
purposes." Id. § 4553(2-A). In other words, the MHRA's
nondiscrimination-in-education regime covers only schools that
receive public funding. In contrast, the MHRA's employment
provisions generally apply to all employers regardless of public
funding, though with carveouts for religious employers, discussed
below. See id. § 4553(4) (defining "employer" without regard to
public funding).
- 10 -Two further caveats are relevant to our description of
Maine's reticulated statutory scheme. First, the MHRA's
educational provisions do not apply to private postsecondary
institutions (i.e., colleges, universities, and technical
schools), including those that receive public funds. Id.
§ 4553(2-A). So while the State offers Maine undergraduate
students attending Maine postsecondary institutions need-based
grants of up to $2,500 per year paid directly to the students'
institutions through the Maine State Grant Program, Me. Stat.
tit. 20-A, §§ 11611–11620,6 such institutions are not bound by the
MHRA's provisions regarding educational discrimination.
Second, the parties agree that the MHRA does not have
extraterritorial reach. See Judkins v. Saint Joseph's Coll. of
Me., 483 F. Supp. 2d 60, 65–66 (D. Me. 2007) (noting the MHRA's
lack of extraterritorial reach). Thus, the MHRA does not empower
suits against out-of-state schools that participate in the
tuition-assistance program. In fact, one such school
(Massachusetts's Dana Hall School) bars boys from attending, a
6 Maine State Grant Program, Fin. Auth. of Me.,
https://www.famemaine.com/affording-education/pay-forschool/maine-grant-tuition-programs/maine-state-grant-program/
[https://perma.cc/8BRK-WEVE] (last visited July 24, 2025).
- 11 -practice that would violate the MHRA if Dana Hall were located in
Maine and continued to accept tuition-assistance funds.7
2. The 2021 Amendments
In May 2021, before the Supreme Court acted on the Carson
certiorari petition, the MHRC submitted to the Maine legislature
a bill to amend the MHRA, entitled "An Act to Improve Consistency
within the Maine Human Rights Act" (the "2021 Amendments").
S.P. 544, 130th Leg., 1st Spec. Sess., 2021 Me. Laws. 761
(enacted).8 The proposed bill touched many parts of the MHRA,
including its policy statement, definition of familial status, and
provisions governing discrimination in employment, housing, public
accommodations, credit, and education. See generally id. The
summary included in the bill stated that the amendments would
"address[] inconsistencies" in the MHRA, including by
"[c]larifying the scope of the Maine Human Rights Act['s]
application in education." Id.
In support of the bill, the MHRC submitted testimony to
the legislature stating that, because "its provisions have been
amended in a piecemeal fashion," "the scope of the MHRA's
7 Tuition Rates, supra; About Dana Hall, Dana Hall Sch.,
https://www.danahall.org/about [https://perma.cc/AY4Y-HRCV] (last
visited Apr. 22, 2026).
8 A largely identical set of amendments had been proposed in
2019 but were not enacted into law. H.P. 1218, 129th Leg.,
1st Reg. Sess. (Me. 2019).
- 12 -protection varies based on which area of its jurisdiction is
invoked." Hearing on Leg. Doc. 1688 Before the J. Standing Comm.
on the Judiciary, 130th Leg., 1st Spec. Sess. 1 (Me. 2021)
(statement of Amy M. Sneirson, Exec. Dir., Me. Hum. Rts. Comm'n,
& Barbara Archer Hirsch, Comm'n Couns., Me. Hum. Rts. Comm'n). As
relevant here, the MHRC opined that "[t]he MHRA's current education
coverage is woefully out of date, and inconsistent with the rest
of the Act." Id. at 5.
The legislature enacted the 2021 Amendments into law in
June 2021, shortly before the Supreme Court granted certiorari in
Carson. An Act to Improve Consistency in Terminology and within
the Maine Human Rights Act, Me. Pub. L. 2021, ch. 366, 2021 Me.
Laws 761 (codified as amended in scattered sections of Me. Stat.
tit. 5).
3. The Challenged Rules
At issue in this case are four rules imposed by the MHRA.
Below, we describe these rules in turn, as well as the effect of
the 2021 Amendments on each.
a. The Employment Rule
We begin with the first challenged rule, which we refer
to as the "Employment Rule." Subject to three important carveouts
explained below, it bars employment discrimination based on "race
or color, sex, sexual orientation or gender identity, physical or
mental disability, religion, age, ancestry, national origin or
- 13 -familial status." Me. Stat. tit. 5, § 4572(1). This rule predates
the 2021 Amendments and the Carson litigation, as do its three
carveouts.9 Compare Me. Stat. tit. 5, §§ 4553(4), 4553(10),
4572(1), 4573-A(2) (2026), with Me. Stat. tit. 5, §§ 4553(4),
4553(10), 4572(1), 4573-A(2) (2018).
First, section 4553(4) excludes from the definition of
"employer" any nonprofit "religious or fraternal corporation or
association . . . with respect to employment of its members of the
same religion, sect or fraternity, except for purposes of
disability-related discrimination." This carveout insulates
religious entities whether or not they receive public funds.
Second, section 4573-A(2) allows any religious
organization to "giv[e] preference in employment to individuals of
its same religion to perform work connected with the carrying
on . . . of its activities" and to "require that all applicants
and employees conform to [its] religious tenets." This carveout
likewise covers religious entities regardless of whether they
receive public funds.
9The 2021 Amendments did explicitly add familial status,
and, as relevant here, gender identity to the list of enumerated
protected characteristics. 2021 Amendments sec. 5 (codified at
Me. Stat. tit. 5, § 4572). However, prior to the 2021 Amendments,
gender identity was a protected characteristic via the statutory
definition of sexual orientation. See supra note 5.
- 14 -Third, section 4553(10)(G) expressly exempts from the
Employment Rule's sexual orientation and gender identity
provisions religious entities that do not receive public funds.
b. The Religious Expression Rule
We next turn to the second challenged rule, which we
refer to as the "Religious Expression Rule." Entirely new when
adopted as part of the 2021 Amendments, this rule provides that
the MHRA does not "[r]equire[] an educational institution to
participate in or endorse any religious beliefs or practices" but
that, "to the extent that an educational institution permits
religious expression, it cannot discriminate between religions in
so doing." 2021 Amendments sec. 19 (codified at Me. Stat. tit. 5,
§ 4602(5)(D)). Like the rest of the MHRA's education provisions,
this rule only applies to a private elementary or secondary school
in Maine if it receives public funding. Me. Stat. tit. 5,
§ 4553(2-A).
c. The Religious Nondiscrimination Rule
We refer to the third of the challenged rules as the
"Religious Nondiscrimination Rule." As relevant here, and as the
parties agree, this rule bars schools from discriminating on the
basis of religion in "academic, extracurricular, research,
occupational training or other program[s] or activit[ies],"
"athletic programs," "admission[s]," "recruitment," or "financial
assistance." Me. Stat. tit. 5, § 4602(1).
- 15 -This bar on religious discrimination was added by the
2021 Amendments. 2021 Amendments sec. 19 (codified at Me. Stat.
tit. 5, § 4602(1)). Prior to 2021, including in 2018 when the
Carson litigation began, the MHRA barred discrimination in
education on the basis of race, sex, sexual orientation (or gender
identity),10 physical or mental disability, or national origin.
Me. Stat. tit. 5, § 4602 (2018). The 2021 Amendments added to
this prohibition actions taken on the basis of color, ancestry,
and -- most relevant here -- religion. 2021 Amendments sec. 19
(codified at Me. Stat. tit. 5, § 4602(1)). This extension aligned
the MHRA's education provisions with its employment and housing
provisions, which already covered discrimination on those grounds.
Me. Stat. tit. 5, §§ 4571, 4581 (2018). This rule also only
applies if a school receives public funding. Me. Stat. tit. 5,
§ 4553(2-A).
d. The Sexual Orientation and Gender Identity Nondiscrimination
Rule
Finally, we refer to the fourth challenged rule as the
"Sexual Orientation and Gender Identity Nondiscrimination Rule."
This rule mirrors the Religious Nondiscrimination Rule's scope but
10 Contrary to language in plaintiffs' opening brief, the
prohibition on gender-identity discrimination in education
predated the 2021 Amendments, which merely separated sexual
orientation and gender identity into distinct classifications.
See supra note 5.
- 16 -bars instead actions taken on the basis of sexual orientation or
gender identity. Me. Stat. tit. 5, § 4602(1).11
11 The Religious Nondiscrimination Rule and the Sexual
Orientation and Gender Identity Nondiscrimination Rule are
actually part of the same provision, section 4602(1). In full,
that provision reads:
1. Unlawful educational discrimination. It
is unlawful educational discrimination in
violation of this Act, on the basis of sex,
sexual orientation or gender identity,
physical or mental disability, ancestry,
national origin, race, color or religion, to:
A. Exclude a person from participation
in, deny a person the benefits of, or
subject a person to, discrimination in
any academic, extracurricular, research,
occupational training or other program or
activity;
B. Deny a person equal opportunity in
athletic programs;
C. Apply any rule concerning the actual
or potential familial status or marital
status of a person or to exclude any
person from any program or activity
because of pregnancy or related
conditions or because of sex or sexual
orientation or gender identity;
D. Deny a person admission to the
institution or program or to fail to
provide equal access to and information
about an institution or program through
recruitment; or
E. Deny a person financial assistance
availability and opportunity.
Me. Stat. tit. 5, § 4602(1). We follow St. Dominic's lead and
treat section 4602(1)'s bars on religious discrimination and
sexual orientation and gender identity discrimination separately.
See Me. Stat. tit. 1, § 71(8) (providing for severability of
statutory provisions and applications).
- 17 -Prior to the 2021 Amendments, the MHRA exempted from
this prohibition on sexual-orientation and gender-identity
discrimination "any education facility owned, controlled or
operated by a bona fide religious corporation, association or
society." Me. Stat. tit. 5, § 4602(4) (2018). This exemption
applied regardless of whether a religious school received public
funding. The 2021 Amendments revised this exemption to read,
"Nothing in this section . . . [r]equires a religious corporation,
association or society that does not receive public funding to
comply with this section as it relates to sexual orientation or
gender identity." 2021 Amendments sec. 19 (codified at Me. Stat.
tit. 5, § 4602(5)(C)); see also id. sec. 3 (codified at Me. Stat.
tit. 5, § 4553(10)(G)). In other words, the MHRA now exempts from
the Sexual Orientation and Gender Identity Nondiscrimination Rule
only those religious schools that do not receive public funding.
In this regard, the amendments again aligned the MHRA's education
provisions with its employment and housing provisions, which
already exempted from similar rules against discrimination on the
basis of sexual orientation and gender identity only those
religious entities that did not receive public funds. Me. Stat.
tit. 5, § 4553(10)(G) (2018). In any case, as part of the MHRA's
education provisions, the Sexual Orientation and Gender Identity
Nondiscrimination Rule only applies to schools that receive public
funding. See Me. Stat. tit. 5, § 4553(2-A).
- 18 -C. Summary
To summarize: Maine previously barred parents from
using publicly funded tuition-assistance payments at sectarian
religious schools. A pair of families challenged that nonsectarian
requirement in federal court. As that case was being litigated,
the State amended the nondiscrimination laws applicable to all
Maine elementary and secondary schools receiving public funding.
The Supreme Court then struck down the nonsectarian requirement,
allowing parents to direct public funds to religious schools via
the tuition-assistance program. Now, a religious school in Maine
may receive publicly funded tuition assistance, but if it does so,
it must comply with most of the State's nondiscrimination laws or
else face investigation by the MHRC and potential civil liability.
II. Case Background
A. Facts12
St. Dominic Academy is a private Catholic school
operated by the Roman Catholic Diocese of Portland. The school
offers education from pre-kindergarten through eighth grade.13 It
12 In reciting the following facts, "[w]e look at the
allegations in the plaintiffs' complaint[] and the evidence from
the preliminary injunction proceedings." Doe v. Trump, 157 F.4th
36, 47 (1st Cir. 2025).
13 When it filed this lawsuit, St. Dominic offered grades
nine through twelve, as well. After oral argument on this appeal,
though, the Diocese decided to close St. Dominic's high school
operations.
- 19 -does not currently receive tuition assistance, but the school
states -- and the Commissioners do not dispute -- that it "meets
or is capable of meeting the requirements to become approved for
tuition purposes." Keith and Valori Radonis are parents of
school-aged children who, at the time of filing this lawsuit,
wished to send their children to St. Dominic using the
tuition-assistance program.
As a Catholic school, St. Dominic is "part of the
Catholic Church's evangelizing mission." Its "primary purpose" is
"to assist Catholic parents in providing their children with a
Catholic education," and as such, the school "gives preference in
both admission and financial aid to Catholic students." Although
Diocesan policy provides that "[s]tudents of other religious
beliefs should be admitted whenever possible," St. Dominic admits
only students who "understand, accept, and [are] willing to support
the mission and goals of the school" and "agree to attend religion
classes, Mass, and other religious activities." Every student at
St. Dominic "must agree to uphold 'Catholic Christian morals.'"
Similarly, St. Dominic requires all employees to "[l]ive personal
lives in such a way that fundamental teachings of the Catholic
Church are upheld."
St. Dominic does not "inquire about a student's sexual
orientation or gender identity at the time of admission." The
school's leaders do, however, believe that "[t]he right and duty
- 20 -of parents to educate their children are primordial and
inalienable." Accordingly, the school objects to being required
by the State to facilitate "a student's efforts to change his or
her gender identity" without parental consent. The school also
suggests it would not "discipline staff and students who have a
religious or conscientious objection to using a student's
preferred pronouns if they do not correspond to the student's
biological sex."
According to St. Dominic, its foregoing policies
violate, to one extent or another, the Employment Rule, the
Religious Expression Rule, the Religious Nondiscrimination Rule,
and/or the Sexual Orientation and Gender Identity
Nondiscrimination Rule. Were it not for these rules, the school
says, it would seek and receive approval for the tuition-assistance
program.
B. Procedure
In March 2023, Crosspoint Church -- which operates a
private, religious K–12 school unaffiliated with the plaintiffs in
this case -- sued the Commissioners in the District of Maine,
seeking relief on First Amendment grounds from the Employment Rule,
the Religious Expression Rule, the Religious Nondiscrimination
Rule, and the Sexual Orientation and Gender Identity
Nondiscrimination Rule. Crosspoint Church v. Makin, 719 F. Supp.
3d 99, 103–04, 104 n.1 (D. Me. 2024). In June 2023, St. Dominic
- 21 -Academy, the Roman Catholic Diocese of Portland, and Keith and
Valori Radonis (on behalf of their school-aged children) filed
this similar suit against the same defendants in the same court.
The plaintiffs in both suits moved for preliminary injunctive
relief.
In February 2024, the district court denied Crosspoint's
motion for a preliminary injunction. Id. at 126. In June 2024,
the court, upon joint motion of the parties to that suit, converted
that order into an order denying a permanent injunction and entered
final judgment for the Commissioners. Crosspoint Church v. Makin,
No. 23-cv-00146, 2024 WL 2830931, at *4 (D. Me. June 4, 2024). In
August 2024, in this suit, the district court denied plaintiffs'
motion for a preliminary injunction. St. Dominic Acad. v. Makin,
744 F. Supp. 3d 43, 84 (D. Me. 2024). The plaintiffs in both suits
timely appealed, and we consider the latter case here.
During the pendency of this appeal, plaintiffs informed
us that the Radonises' claim for injunctive relief was moot. This
development moots the parental-rights claim for injunctive relief,
which was asserted only on behalf of the Radonises. We therefore
remand that claim and order its dismissal without prejudice. See
White v. Gittens, 121 F.3d 803, 807 (1st Cir. 1997).14 The upshot
14 In supplemental notices of authority submitted after the
Radonises' parental-rights claim became moot, St. Dominic
nevertheless argues that the Supreme Court's parental-rights
- 22 -is that we consider, here, only the appeal of St. Dominic Academy
and the Roman Catholic Diocese of Portland (collectively,
"St. Dominic").
III. Analysis
When ruling on a motion for a preliminary injunction, a
district court must consider four factors: (1) "the movant's
likelihood of success on the merits"; (2) "whether and to what
extent the movant will suffer irreparable harm in the absence of
injunctive relief"; (3) "the balance of relative hardships"; and
(4) "the effect, if any, that an injunction or the lack of one may
have on the public interest." Russomano v. Novo Nordisk Inc., 960
F.3d 48, 52 (1st Cir. 2020) (citation modified). "The party
seeking the preliminary injunction bears the burden of
establishing that these four factors weigh in its favor." Esso
Standard Oil Co. (P.R.) v. Monroig-Zayas, 445 F.3d 13, 18 (1st
Cir. 2006). That said, "the four factors are not entitled to equal
weight in the decisional calculus; rather, likelihood of success
is the main bearing wall of the four-factor framework." Corp.
Techs., Inc. v. Harnett, 731 F.3d 6, 9–10 (1st Cir. 2013) (citation
modified).
"We review the district court's ruling on a motion for
a preliminary injunction for abuse of discretion. Within that
caselaw supports its own entitlement to relief. We address that
argument below. See infra Section III.A.4.b.iii.
- 23 -framework, we examine legal questions de novo, findings of fact
for clear error, and the balancing of the four factors for abuse
of discretion." Russomano, 960 F.3d at 53 (citation modified).
A. Likelihood of Success on the Merits
We consider first St. Dominic's likelihood of success on
the merits in its challenges to the Employment Rule, the Religious
Expression Rule, the Religious Nondiscrimination Rule, and the
Sexual Orientation and Gender Identity Nondiscrimination Rule, in
that order. As we will explain, we conclude that St. Dominic has
not shown that the Employment Rule would prohibit any of its
preferred policies. In contrast, we find that St. Dominic has
shown a likelihood of success as to the Religious Expression Rule.
However, St. Dominic has not established a likelihood of success
as to any contested application of the Religious Nondiscrimination
Rule. Finally, St. Dominic is not likely to succeed in its
challenge to the Sexual Orientation and Gender Identity
Nondiscrimination Rule.
1. The Employment Rule
St. Dominic argues that the Employment Rule "threatens
to intrude on" its "hiring rights," which "are rooted in
longstanding protections that stem from both Religion Clauses" of
the First Amendment. We read the MHRA differently and thus see no
live controversy concerning St. Dominic's employment practices.
- 24 -"Article III [of the Constitution] confines the federal
judicial power to the resolution of 'Cases' and 'Controversies.'"
TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021); see also U.S.
Const. art. III., § 2, cl. 1. In other words, "federal courts do
not adjudicate hypothetical or abstract disputes" or "issue
advisory opinions." TransUnion, 594 U.S. at 423–24. This means
that, to invoke our power, a plaintiff must first and foremost
establish standing. Id. at 423. Standing, in turn, requires a
plaintiff to show "(i) that he suffered an injury in fact that is
concrete, particularized, and actual or imminent; (ii) that the
injury was likely caused by the defendant; and (iii) that the
injury would likely be redressed by judicial relief." Id. Here,
we focus on the first requirement, injury in fact. When a
plaintiff brings a pre-enforcement challenge to a statute on First
Amendment grounds, this requirement is satisfied if "the plaintiff
has alleged an intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed by the
statute, and there exists a credible threat of prosecution." N.H.
Right to Life Pol. Action Comm. v. Gardner, 99 F.3d 8, 14 (1st
Cir. 1996) (citation modified).15 As the party invoking the federal
15While New Hampshire Right to Life confined this standard
to situations in which the plaintiff challenged a statute carrying
criminal penalties, 99 F.3d at 14, we have more recently cited
this standard in a case involving a school board policy with no
apparent criminal penalties, McBreairty v. Miller, 93 F.4th 513,
518 (1st Cir. 2024). In this case, where the MHRA grants a
- 25 -judicial power, St. Dominic bears the burden of "demonstrat[ing]
standing for each claim that [it] press[es] and for each form of
relief that [it] seek[s]." TransUnion, 594 U.S. at 431.16
St. Dominic has failed to carry this burden as regards
the Employment Rule because that rule does not proscribe the
school's hiring practices. While the rule generally bars schools
from employment discrimination based on religion, sexual
orientation, or gender identity, the MHRA contains two specific
carveouts for religious schools that apply regardless of whether
a school participates in the tuition-assistance program. First,
section 4553(4) expressly protects a religious school's ability to
discriminate "with respect to employment of its members of the
same religion, sect or fraternity." Me. Stat. tit. 5, § 4553(4).
Second, section 4573-A(2) allows a religious school to "require
that all applicants and employees conform to [its] religious
tenets." Id. § 4573-A(2).
The district court held that these provisions fully
protect St. Dominic's religious hiring autonomy. See St. Dominic,
government body civil enforcement powers and imposes substantial
financial liability for violations, we assume a similar standard
governs.
"We assume, favorably to [St. Dominic], that a plaintiff's
16
standing to seek a preliminary injunction should be judged on the
sufficiency of the allegations of the complaint, with any
preliminary hearing evidence favorable to the plaintiffs on
standing treated as additional allegations of the complaint."
McBreairty, 93 F.4th at 518 n.2 (citation modified).
- 26 -744 F. Supp. 3d at 68. Specifically, the court explained that the
provisions "clearly protect[]" St. Dominic's ability "to limit
employment to individuals who conform with the Catholic faith."
Id. On appeal, the Commissioners concede -- as they did below,
id. at 67 -- that these provisions allow St. Dominic to "limit
employment to members of its religion and require all applicants
[for employment] and employees to conform to its religious tenets."
These concessions notwithstanding, St. Dominic insists
that the Employment Rule still threatens its hiring practices. It
argues that the rule exposes it to liability if it refuses to
employ persons who do not comply with the school's religious tenets
concerning sexual orientation and gender identity.
But the rule's above-quoted carveouts -- which apply
regardless of whether St. Dominic accepts tuition
assistance -- clearly allow St. Dominic to hire only
co-religionists and to ensure that all employees, even
non-Catholic ones, conform to the school's understanding of
Catholic teachings -- including those concerning sexual
orientation and gender identity. These exceptions may well provide
the school with greater leeway than the Constitution requires.
See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C.,
565 U.S. 171, 188 (2012) (recognizing "ministerial exception,"
which "precludes application of [employment] legislation to claims
concerning the employment relationship between a religious
- 27 -institution and its ministers"); see also Union Gospel Mission of
Yakima Wash. v. Brown, 162 F.4th 1190, 1197 (9th Cir. 2026)
(extending church-autonomy doctrine to protect "the decision to
hire co-religionists for non-ministerial roles if that decision is
based on the organization's sincerely held religious beliefs").
It therefore matters not that the third carveout from the
Employment Rule -- section 4553(10)(G) -- offers no redundant
protection for schools that take tuition-assistance payments. See
Me. Stat. tit. 5, § 4553(10)(G).
St. Dominic cites several extrinsic sources to support
its view that the MHRC might nevertheless try to use the Employment
Rule to interfere with St. Dominic's hiring practices. Most
notably, St. Dominic points out that, during the Carson
litigation, the State (on behalf of Commissioner Makin) contended
that if religious schools "receive public funds, the [MHRA] will
prohibit them from considering sexual orientation in their
employment decisions." Carson, 401 F. Supp. 3d at 209. But with
the statutory text, the district court's decision, and the
Commissioners' appellate briefing in this case all pointing
plainly in the opposite direction, those abandoned contra-textual
assertions made in litigation nearly a half-decade ago or more
carry no weight. Through its legislation and the Commissioners'
concessions in this litigation, the State has twice made clear
- 28 -that St. Dominic already has what it claims to seek. And our
ruling so stating should add belt to suspenders.
St. Dominic also highlights the Commissioners'
suggestion that, under certain circumstances, the Employment Rule
might prevent a religious school from firing someone in a same-sex
union. But the Commissioners do not argue that St. Dominic cannot
fire a teacher who enters a same-sex union for failing to "conform
to [St. Dominic's] religious tenets." Rather, the Commissioners
suggest that there may be circumstances in which a religious school
might refuse to employ a person in a same-sex union for reasons
other than noncompliance with that school's religious tenets. And
if the position is non-ministerial, the Commissioners speculate,
such a situation might trigger the Employment Rule.17 However, we
need not delve into this hypothetical. So long as St. Dominic
views same-sex unions as "[in]compatible with [Catholic]
teaching," as St. Dominic assures us it does, the Commissioners'
hypothetical will never apply to the school.
In sum, it is clear that the Employment Rule does not
credibly threaten to injure St. Dominic, so the question whether
17 In such a case, the Commissioners say, "a court would need
to decide whether the action was based on the employee's
conformance with [the school's] religious tenets." We note that,
in such an inquiry, it would not be "within the judicial function
and judicial competence to inquire" whether the school "correctly
perceived the commands" of its faith. Thomas v. Rev. Bd. of Ind.
Emp. Sec. Div., 450 U.S. 707, 716 (1981).
- 29 -the rule would be unconstitutional if it did pose such a threat is
a purely hypothetical question not presented by any controversy
between the parties. See Babbitt v. United Farm Workers Nat'l
Union, 442 U.S. 289, 298 (1979) ("The basic inquiry is whether the
conflicting contentions of the parties present a real, substantial
controversy between parties having adverse legal interests, a
dispute definite and concrete, not hypothetical or abstract."
(citation modified)), overruled on other grounds by 442 U.S. 936
(1979); Whitmore v. Arkansas, 495 U.S. 149, 157 (1990) ("[The]
alleged injury is too speculative to invoke the jurisdiction of an
Art. III court."). As such, the district court was without power
under the Constitution to issue St. Dominic's requested injunction
against the Employment Rule.
2. The Religious Expression Rule
We turn next to St. Dominic's challenge to the Religious
Expression Rule, which provides that "to the extent that an
educational institution permits religious expression, it cannot
discriminate between religions in so doing." Me. Stat. tit. 5,
§ 4602(5)(D). St. Dominic primarily contends that this rule
violates the school's free-exercise rights because it would
require the school to "allow students to express dissenting
religious views, even when doing so is contrary to the school's
- 30 -religious mission." As we explain, we conclude that St. Dominic
has shown a likelihood of success on the merits of this challenge.18
a. Justiciability
The Commissioners argue, first, that we should not reach
the merits of St. Dominic's challenge to the Religious Expression
Rule. In so arguing, they point to the doctrines of ripeness, see
Abbott Lab'ys v. Gardner, 387 U.S. 136, 148–49 (1967) (subsequent
history omitted), and Pullman abstention, see R.R. Comm'n of Tex.
v. Pullman Co., 312 U.S. 496, 501 (1941). For the following
reasons, we conclude that neither doctrine bars St. Dominic's
challenge to the Religious Expression Rule.
i. Ripeness
The Commissioners insist that St. Dominic's claims are
not ripe for judicial review. The district court found
St. Dominic's challenge to the Religious Expression Rule ripe,
St. Dominic, 744 F. Supp. 3d at 61–65, a determination we review
de novo, Lab. Rels. Div. of Constr. Indus. of Mass., Inc. v.
Healey, 844 F.3d 318, 327 (1st Cir. 2016).
Ripeness doctrine derives from the same Article III
case-or-controversy requirement as standing doctrine. Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 157 n.5 (2014); see also
18Accordingly, we need not reach St. Dominic's other
arguments against the rule and do not address them in the analysis
that follows.
- 31 -supra Section III.A.1. Whereas standing trains on who may sue,
ripeness asks when they may sue. R.I. Ass'n of Realtors, Inc. v.
Whitehouse, 199 F.3d 26, 33 (1st Cir. 1999). The latter inquiry
aims "to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract
disagreements." Abbott Lab'ys, 387 U.S. at 148. To determine the
ripeness of a dispute, we must "evaluate both the fitness of the
issues for judicial decision and the hardship to the parties of
withholding court consideration." Id. at 149. In this
pre-enforcement context, fitness demands that St. Dominic "have
concrete plans to engage immediately (or nearly so) in an arguably
proscribed activity," while hardship demands "[a] showing that the
challenged statute, fairly read, thwarts implementation of the
plan." Whitehouse, 199 F.3d at 33.
St. Dominic satisfies both the fitness and the hardship
prongs. First, St. Dominic has clearly "articulated a concrete
plan to violate the" Religious Expression Rule, Thomas v. Anchorage
Equal Rts. Comm'n, 220 F.3d 1134, 1139 (9th Cir. 2000) (citation
modified), including by continuing to allow and encourage students
to engage in Catholic expression while limiting any attempts to
engage in analogous non-Catholic religious expression. Second,
the rule would thwart those plans by requiring St. Dominic to
either limit Catholic expression by students or allow non-Catholic
expression on an equal footing. In essence, absent "prompt
- 32 -judicial review," St. Dominic might be "forc[ed] . . . to choose
between refraining from core [First Amendment activities] on the
one hand, or engaging in [those activities] and risking costly"
punishment on the other. Susan B. Anthony List, 573 U.S. at
167–68; see also Whitehouse, 199 F.3d at 34 (describing "the direct
and immediate dilemma of choosing between the Scylla of
intentionally flouting state law and the Charybdis of forgoing
what [plaintiff] believe[s] to be constitutionally protected
activity" (citation modified)).
The Commissioners primarily rejoin that St. Dominic's
claim is not ripe absent "a credible threat of prosecution"
directed at the school. Whitehouse, 199 F.3d at 33.19 True enough.
But, in the First Amendment context, so long as the challenged
statute "facially restrict[s] expressive activity by the class to
which the plaintiff belongs," we "assume a credible threat of
prosecution in the absence of compelling contrary evidence." N.H.
Right to Life, 99 F.3d at 15. Here, St. Dominic plans to continue
engaging in conduct that would flatly violate the rule's text were
it to accept tuition assistance. As such, we see no reason to
think it "imaginary or wholly speculative," Babbitt, 442 U.S. at
302–03, that either the MHRC or a private plaintiff would bring an
Ripeness shares this requirement with standing doctrine
19
in this pre-enforcement posture. Whitehouse, 199 F.3d at 33.
- 33 -MHRA action if application of the Religious Expression Rule to
St. Dominic is not precluded.
The Commissioners also argue that St. Dominic's claims
are not ripe because enforcement turns on the actions of third
parties -- i.e., St. Dominic will only face an enforcement action
if a discriminated-against student complains. But parties can
sometimes satisfy ripeness even where their claims are contingent
on uncertain future events, including those involving third
parties. See, e.g., Stern v. U.S. Dist. Ct. for Dist. of Mass.,
214 F.3d 4, 12 (1st Cir. 2000) (allowing a suit predicated on the
nonparty Department of Justice approving an application for a
subpoena). Moreover, because the MHRA empowers MHRC employees to
file complaints themselves, Me. Stat. tit. 5, § 4611, St. Dominic
could face an enforcement action even if no student complains.
And the probability of such an action, should St. Dominic violate
the Religious Expression Rule, is sufficiently great that we will
not force St. Dominic to risk a suit for damages in order to
clarify its rights.
We therefore conclude that St. Dominic's challenge to
the Religious Expression Rule is ripe.
ii. Pullman Abstention
The Commissioners separately argue that we should rely
on Pullman to abstain from adjudicating St. Dominic's claims
because of uncertainty surrounding the Religious Expression Rule's
- 34 -meaning. The district court rejected this argument, St. Dominic,
744 F. Supp. 3d at 60–61. We review the district court's rejection
de novo. See Brooks v. N.H. Sup. Ct., 80 F.3d 633, 637 (1st Cir.
1996).20
Under Pullman, "declining to exercise jurisdiction is
warranted where (1) substantial uncertainty exists over the
meaning of the state law in question, and (2) settling the question
of state law will or may well obviate the need to resolve a
significant federal constitutional question." Batterman v. Leahy,
544 F.3d 370, 373 (1st Cir. 2008). We apply Pullman abstention
only where a "statute is of an uncertain nature[] and is obviously
susceptible of a limiting construction." Haw. Hous. Auth. v.
Midkiff, 467 U.S. 229, 237 (1984) (quoting Zwickler v. Koota, 389
U.S. 241, 251 n.14 (1967)).
The Commissioners contend that a state court might read
the Religious Expression Rule to not reach any of St. Dominic's
religiously motivated practices. But should St. Dominic accept
20 In Brooks, we reviewed a district court's decision to
abstain under Younger v. Harris, 401 U.S. 37 (1971), rather than
Pullman. Brooks, 80 F.3d at 637. But other circuits similarly
apply a de novo standard to the question of "whether the
requirements for Pullman abstention are satisfied." Am. Encore v.
Fontes, 152 F.4th 1097, 1109 (9th Cir. 2025) (citation modified);
see also id. ("If [those requirements] are not [satisfied], the
district court has little or no discretion to abstain; if they
are, we review the decision to abstain for an abuse of discretion."
(citation modified)). Because, here, we concern ourselves only
with the preliminary requirements for Pullman abstention, we
proceed with de novo review.
- 35 -tuition-assistance funds, the Religious Expression Rule would
clearly force St. Dominic to allow non-Catholic religious
proselytizing unless it barred all forms of religious
expression -- including, as pertinent here, the Catholic
expression that is central to the school's self-described role as
"part of the Catholic Church's evangelizing mission."21 In short,
the Religious Expression Rule is not so uncertain that state-court
intervention would "obviate the need to resolve a significant
federal constitutional question." Batterman, 544 F.3d at 373.
b. Level of Scrutiny
We turn now to the level of scrutiny we should apply to
St. Dominic's free-exercise challenge to the Religious Expression
Rule. The Free Exercise Clause, as incorporated against the
states, bars any law "prohibiting the free exercise" of religion.
U.S. Const. amend. I. Pursuant to the traditional framework
applied to free-exercise claims, propounded in Employment Division
v. Smith, 494 U.S. 872 (1990), "laws incidentally burdening
religion are ordinarily not subject to strict scrutiny under the
Free Exercise Clause so long as they are neutral and generally
21The Commissioners also briefly argue that St. Dominic
cannot press its claims because the 2021 Amendments "would not
require St. Dominic to change its educational practices." Whether
we construe this as an Article III injury-in-fact argument or a
First Amendment argument, we reject the Commissioners' contention
as to the Religious Expression Rule for the reasons given in this
section and the following section, infra.
- 36 -applicable." Fulton v. City of Philadelphia, 593 U.S. 522, 533
(2021). Because we conclude the Religious Expression Rule burdens
St. Dominic's religious exercise and is not neutral, we subject
the rule to strict scrutiny without reaching the issue of its
general applicability. Our reasoning follows.
At the outset, the Commissioners seem to argue Smith's
framework does not apply here at all because the Religious
Expression Rule does not burden St. Dominic's religious exercise.
To support this argument, the Commissioners urge a narrow
interpretation of the Religious Expression Rule. According to the
Commissioners, the language, "to the extent an educational
institution permits religious expression," refers solely to
permitting religious expression by students. Under this proposed
interpretation, that St. Dominic requires students to attend Mass
but does not provide imam-led prayer services is irrelevant. What
matters, say the Commissioners, is to what extent students may
engage in Catholic religious expression and whether the school
allows students to engage in non-Catholic religious expression to
the same extent. In this way, the Commissioners contend,
"requiring schools to allow religious expression by students does
not regulate the religious practices of the schools themselves."
Assuming the Commissioners' interpretation is correct,
the rule would still implicate St. Dominic's religious exercise.
St. Dominic, as part of its religious mission, requires students
- 37 -to attend religion classes, Mass, and other religious activities.
These activities necessarily entail some degree of student
participation. Even under the Commissioner's reading of the
Religious Expression Rule, then, if a preacher at a school-mandated
Mass permits students to say "Amen" in order to signify agreement,
St. Dominic would then be required to allow expressions of
disagreement. And in the classroom, inculcation often
solicits -- indeed encourages -- affirmation, for example in the
form of an iterative exchange of expression. Few would teach the
Lord's Prayer without having the students recite it; and under the
Religious Expression Rule that recitation would, in turn, appear
to require the school to allow the reciting of, for example, the
Hare Krishna Mahā mantra. And while such an example may seem
fanciful,22 the point is that the Religious Expression Rule would
inevitably interfere with a religious school's ability to foster
an expressive environment consistent with its religious mission.
22 Or perhaps not, once one considers the tendency of some
students to look for opportunities (much less state-provided
soapboxes) to test and provoke their schools. See Bethel Sch.
Dist. No. 403 v. Fraser, 478 U.S. 675, 677–78 (1986) (discussing
high school student's nomination speech as "part of a
school-sponsored educational program in self-government," in which
student "referred to his candidate in terms of an elaborate,
graphic, and explicit sexual metaphor"); Morse v. Frederick, 551
U.S. 393, 397–98 (2007) (explaining how student, at an off-campus
event, held up fourteen-foot banner displaying phrase "BONG HiTS
4 JESUS").
- 38 -Having determined that the Religious Expression Rule
would burden St. Dominic's religious exercise, we move on to the
question of neutrality. "Government fails to act neutrally when
it proceeds in a manner intolerant of religious beliefs or
restricts practices because of their religious nature." Fulton,
593 U.S. at 533. A law can lack neutrality under Smith in one of
two ways: facially or nonfacially. See Church of Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533–34 (1993). We can
start -- and end -- our analysis of the Religious Expression Rule
with facial neutrality.
"A law lacks facial neutrality if it refers to a
religious practice without a secular meaning discernable from the
language or context." Id. at 533. For example, a
tuition-assistance program that permits recipients to pursue a
degree in every area of study except devotional theology is not
facially neutral. Locke v. Davey, 540 U.S. 712, 715 (2004); see
also id. at 731 (Scalia, J., dissenting) (describing such a program
as engaging in "facial discrimination against religion"). By
contrast, ordinances barring the "ritual sacrifice[]" of animals
are facially neutral, even though "[t]he words 'sacrifice' and
'ritual' have a religious origin," because "current use [of those
words] admits also of secular meanings." Lukumi, 508 U.S. at 527,
533–34; see also Trinity Lutheran Church of Columbia, Inc. v.
- 39 -Comer, 582 U.S. 449, 461 (2017) (describing Lukumi as concerning
"facially neutral" ordinances).
Here, the Religious Expression Rule is facially
nonneutral because it singles out "religious expression." Me.
Stat. tit. 5, § 4602(5)(D). Unlike ritual sacrifice, it is
difficult to see how religious expression can have anything but a
religious meaning. And the Religious Expression Rule draws a line
that separates religious expression from other forms of
expression -- including other forms of identity-based expression,
such as ethnicity-based expression (e.g., hosting events for
Italian-American students) and sexual-orientation-based
expression (e.g., participating in a Pride parade).
The Religious Expression Rule thus burdens St. Dominic's
religious practice. And, in singling out religious expression as
opposed to other forms of expression, the rule lacks facial
neutrality.
c. Strict Scrutiny
" A law burdening religious practice that is not neutral
or not of general application must undergo the most rigorous of
scrutiny." Lukumi, 508 U.S. at 546. To survive that scrutiny,
the law must "advance[] interests of the highest order" and be
"narrowly tailored to achieve those interests." Fulton, 593 U.S.
at 541 (citation modified).
- 40 -Here, the Commissioners point to Maine's interest in
combatting discrimination in publicly funded Maine schools but
offer no argument why this general interest justifies the Religious
Expression Rule specifically. The district court fairly inferred
a particular interest in "protecting students' rights to free
expression." St. Dominic, 744 F. Supp. 3d at 77. But, in light
of Carson, 596 U.S. 767, an interest in potentially protecting
students' free-speech and free-exercise rights cannot justify
presently infringing schools' free-exercise rights.
In Carson, the Supreme Court found that the
tuition-assistance program's prior nonsectarian requirement failed
strict scrutiny. Id. at 781. Although Maine asserted an interest
in the separation of church and state, the Court explained that
allowing religious schools to participate in the program would not
violate the Establishment Clause of the First Amendment. Id. In
other words, the Constitution did not require Maine to pursue its
antiestablishment interest via the nonsectarian requirement. As
such, Maine's "interest in separating church and state more
fiercely than the Federal Constitution" could not be compelling
"in the face of the infringement of free exercise." Id. (quotation
marks omitted) (quoting Espinoza v. Mont. Dep't of Revenue, 591
U.S. 464, 484–85 (2020)).
The Court's Espinoza decision points in the same
direction. There, Montana argued that a similar bar on tuition
- 41 -assistance to religious schools "protect[ed] the religious liberty
of taxpayers by ensuring that their taxes [were] not directed to
religious organizations, and . . . safeguard[ed] the freedom of
religious organizations by keeping the government out of their
operations." Espinoza, 591 U.S. at 485. The Court found those
interests insufficient because it had previously upheld
"government programs that spend taxpayer funds on equal aid to
religious observers and organizations." Id. And, the Court
explained, "[a]n infringement of First Amendment rights . . .
cannot be justified by a State's alternative view that the
infringement advances religious liberty." Id.
Similarly, here, Maine seeks to protect the free-speech
and free-exercise rights of students, but it has not argued that
such protection is required by the Constitution. As a result,
that goal cannot justify infringing the free-exercise rights of
religious schools by conditioning equal access to tuition
assistance on such schools acting not like religious schools, but
instead like theological debate fora in which all religious views
warrant equal treatment.
Absent any cogent argument that the State has a
compelling interest behind the Religious Expression Rule's facial
nonneutrality, the rule cannot survive strict scrutiny. We
- 42 -therefore conclude that St. Dominic is likely to prevail on its
Free Exercise Clause challenge to the Religious Expression Rule.23
3. The Religious Nondiscrimination Rule
We focus next on the Religious Nondiscrimination Rule,
which bars subject schools from discriminating on the basis of
religion in admissions, financial aid, academics,
extracurriculars, athletics, and the like. Me. Stat. tit. 5,
§ 4602(1). We begin by addressing threshold questions of
justiciability, finding St. Dominic's claims justiciable in part.
We then consider the level of scrutiny to apply to the rule under
St. Dominic's various claims. Determining that St. Dominic has
not established that any form of heightened scrutiny should apply,
we subject the rule to rational basis review, which it survives.
We therefore conclude that St. Dominic has not shown a likelihood
of success on the merits of its challenge to the Religious
Nondiscrimination Rule.
a. Justiciability
As with the Religious Expression Rule, the Commissioners
contend that St. Dominic's challenge to the Religious
23The Commissioners argue that if we "conclude[] that [the
Religious Expression Rule] violates any of St. Dominic's rights,
[we] should only enjoin [the Religious Expression Rule] and not
any other MHRA provisions." St. Dominic does not challenge this
severability argument, which we adopt. See Leavitt v. Jane L.,
518 U.S. 137, 139 (1996) ("Severability is of course a matter of
state law."); Me. Stat. tit. 1, § 71(8) ("The provisions of the
statutes are severable.").
- 43 -Nondiscrimination Rule is nonjusticiable under the doctrines of
ripeness and Pullman abstention.
St. Dominic identifies only two types of practices in
which it currently engages that it contends the Religious
Nondiscrimination Rule would forbid were it to accept tuition
assistance. First, although the school welcomes students of any
or no faith, it gives preference to Catholic students in admissions
and financial aid, a practice we call its "Catholic preference."
Second, in general, the school only admits those students who
"agree to attend religion classes, Mass, and other religious
activities," and to support the school's mission and goals, which
include "evangelizing," "uphold[ing] 'Catholic Christian morals,'"
and "assist[ing] Catholic parents in providing their children with
a Catholic education." We refer to these practices collectively
as St. Dominic's "mission-oriented admissions practices." We
focus our justiciability analysis on these two sets of practices.
i. Ripeness
To the extent the Religious Nondiscrimination Rule would
bar St. Dominic's Catholic preference were the school to accept
tuition assistance, we find St. Dominic's claims ripe for much the
same reasons its claims as to the Religious Expression Rule are
ripe. See supra Section III.A.2.a.i. Specifically, the school's
Catholic preference is an "arguably proscribed activity," such
that the rule would "thwart[] implementation of [St. Dominic's]
- 44 -plan" to participate in the tuition-assistance program.
Whitehouse, 199 F.3d at 33. Given that clear conflict, we find it
likely that St. Dominic faces "a credible threat of prosecution"
if it does accept program funding. Babbitt, 442 U.S. at 298.
In contrast, we find no case or controversy -- let alone
a ripe one -- concerning St. Dominic's mission-oriented admissions
practices.24 The rule does not arguably proscribe those policies
and, consequently, St. Dominic does not face a credible threat of
enforcement. The rule prohibits discrimination on the basis of
religion, but requiring all students to support the school's
mission does not necessarily treat students differently on the
basis of their religious beliefs.
Nevertheless, St. Dominic asserts that the rule "makes
it unlawful for St. Dominic to require its admitted students to
agree to support the school's Catholic mission." St. Dominic
24 The Commissioners couch their argument against reaching
the merits of the Religious Nondiscrimination Rule in terms of
ripeness. Nevertheless, our conclusion with respect to
St. Dominic's mission-oriented admissions practices sounds in both
standing and ripeness. See In re Fin. Oversight & Mgmt. Bd. for
P.R., 110 F.4th 295, 314 (1st Cir. 2024) (noting federal courts'
"independent obligation" to consider standing). We have
recognized before that "standing and ripeness issues in a case can
boil down to the same question." Jensen v. R.I. Cannabis Control
Comm'n, 160 F.4th 18, 24 (1st Cir. 2025) (citation modified). In
this pre-enforcement context, both doctrines require St. Dominic
to show that its planned course of conduct is "arguably proscribed"
by the statute and that it faces a "credible threat of
prosecution." Whitehouse, 199 F.3d at 33 (ripeness); N.H. Right
to Life, 99 F.3d at 14 (standing).
- 45 -provides no support for this interpretation in the statute's text,
the canons of statutory construction, or MHRA caselaw. Unlike in
its challenge to the Sexual Orientation and Gender Identity
Nondiscrimination Rule, St. Dominic points to no agency guidance
establishing such an application. See infra Section III.A.4.a.
Without any enforcement history, judicial construction, or agency
guidance, moreover, we lack clarity as to how the Religious
Nondiscrimination Rule would be applied to St. Dominic's
mission-oriented admissions practices. It would be difficult to
determine whether, for example, the hypothetical ban on these
practices that St. Dominic reads into the rule would be a neutral
application of the rule or a targeting of the school's religious
exercise. If the MHRC issued guidance stating, "No school may
require students to support its mission in a way that infringes
students' sincerely held religious beliefs," such guidance might
equally apply to a secular school that required a student to
support its mission of fostering inclusion of transgender
perspectives even if that student objected on religious grounds.
But if the guidance held, "No school may require students to
support a religious mission," that might more readily be understood
as targeting only those schools that have religious missions, i.e.,
religious schools. But St. Dominic gives us no reason to think
that the Religious Nondiscrimination Rule would be applied in that
way.
- 46 -The Commissioners -- comprising the body tasked with
enforcing the rule -- disavow such an interpretation. They
maintain that "the only conduct that is arguably proscribed by
[the Religious Nondiscrimination Rule] is St. Dominic's practice
of giving preference to Catholics in admissions and financial aid,"
and that "there is no evidence in the record that [the rule] would
force St. Dominic to admit students it does not want."25 The
Commissioners are not simply saying they do not intend to enforce
the rule against St. Dominic's mission-oriented admissions
practices in their sole discretion; rather, they are saying no
person could so enforce the rule because it does not prohibit those
practices. Blum v. Holder, 744 F.3d 790, 798 (1st Cir. 2014)
("Particular weight must be given [in the standing inquiry] to the
Government['s] disavowal of any intention to prosecute on the basis
of the Government's own interpretation of the statute and its
rejection of plaintiffs' interpretation as unreasonable.").
25The district court stated that the Commissioners "do not
contest that these policies and practices may violate the MHRA."
St. Dominic, 744 F. Supp. 3d at 63 (citing Defs.' Opp. to Pls.'
Mot. Prelim. Inj. 8–9, Dkt. No. 25). We see no such concession in
the Commissioners' opposition below. Rather, in arguing that
St. Dominic's claims were not ripe, the Commissioners noted that
"St. Dominic apparently does not discriminate in admissions"
because "it admits students of any faith or no faith at all" and
"does not claim to discriminate based on any other protected
class." Defs.' Opp. to Pls.' Mot. Prelim. Inj. 8–9 (citation
modified). As the issues of standing and ripeness we consider
here are pure matters of law subject to de novo review, we owe no
deference to the district court's construction of the
Commissioners' arguments below.
- 47 -Still, St. Dominic insists, the Commissioners "admit[]
that the MHRA may require St. Dominic to . . . [u]ndergo [MHRC]
investigation if it declines to admit a student who will not
promise to support its religious mission, uphold Catholic moral
teaching in his personal life, and fully participate in the
religious life of the school." But that is not quite right. All
the Commissioners say is that "[i]t is possible that the MHRC might
have to investigate whether, for example, a student was denied
admission based on being a member of a protected class." That is,
the MHRC would only investigate if St. Dominic were using its
mission-oriented admissions practices as a pretext for denying
students admission on a basis prohibited by the MHRA.26 Nothing
in the record before us indicates that St. Dominic does so, and,
even if it fears an unfounded investigation chilling its religious
freedom, "[a]llegations of a subjective chill are not an adequate
substitute for a claim of specific present objective harm or a
threat of specific future harm." Blum, 744 F.3d at 796 (citation
modified).
In sum, St. Dominic has failed to show that the Religious
Nondiscrimination Rule would arguably proscribe its
26 Notably, this point is not limited to a claim of religious
discrimination. The same would hold true if St. Dominic used its
mission-oriented admissions practices as a pretext for
discrimination on the basis of race, sex, disability, or any other
prohibited ground, yet St. Dominic makes no argument that an
investigation on those bases would violate its rights.
- 48 -mission-oriented admissions practices were it to accept tuition
assistance. And while we "assume a credible threat of prosecution
in the absence of compelling contrary evidence" in First Amendment
cases, that assumption only applies where the challenged statute
"facially restrict[s]" a plaintiff's conduct. N.H. Right to Life,
99 F.3d at 15. Here, the Religious Nondiscrimination Rule does
not so restrict St. Dominic's mission-oriented admissions
practices, and the Commissioners have "affirmatively represented
that [the MHRC] does not intend to prosecute such conduct because
[they] do[] not think it is prohibited by the [rule]." Blum, 744
F.3d at 798. St. Dominic thus faces no credible threat of
enforcement.
Absent conduct arguably proscribed by the rule and a
credible threat of enforcement, we find no present case or
controversy to confront regarding St. Dominic's mission-oriented
admissions practices. This should hardly be bad news for
St. Dominic. As matters now stand, the school would be free to
continue requiring students to attend religion classes and Mass,
support the school's mission and goals, and "uphold 'Catholic
Christian morals,'" even if it joins the tuition-assistance
program. And if the MHRC later reverses course and attempts to
construe the Religious Nondiscrimination Rule as barring those
mission-oriented admissions practices as such (rather than as
pretext for prohibited discrimination), the school may well have
- 49 -a viable judicial-estoppel argument. See Perry v. Blum, 629 F.3d
1, 8 (1st Cir. 2010) (noting that judicial estoppel "operates to
prevent a litigant from taking a litigation position that is
inconsistent with a litigation position successfully asserted by
him in an earlier phase of the same case or in an earlier court
proceeding"). And while that estoppel may not apply to a private
litigant who is not a party to this suit, the hypothetical harm of
a private litigant suing St. Dominic for discrimination on a ground
the MHRC itself says is not covered by the MHRA does not rise to
the level of injury required to establish standing. See Lujan,
504 U.S. at 560 (explaining that standing requires plaintiff's
injury to be "actual or imminent, not conjectural or hypothetical"
(citation modified)).
ii. Pullman Abstention
The Commissioners alternatively argue that we should
abstain under Pullman because it is not clear whether a state court
would find that any of St. Dominic's policies violate the Religious
Nondiscrimination Rule. But, at the very least, St. Dominic's
complaint plainly states that the school "give[s] preference to
Catholic students in admissions." As suggested by our ripeness
analysis, there is no "substantial uncertainty" that preferring
one applicant over another because of the applicants' differing
religious beliefs would conflict with the Religious
Nondiscrimination Rule. Batterman, 544 F.3d at 373; see Finnemore
- 50 -v. Bangor Hydro-Elec. Co., 645 A.2d 15, 17 (Me. 1994) (defining
operative question under MHRA's employment
religious-nondiscrimination provision as "whether [action]
occurred because of an individual's religious beliefs or would not
have occurred but for the individual's religion"). Because
St. Dominic's Catholic preference likely falls within the rule's
prohibition, we find Pullman abstention unavailable here.
We proceed, therefore, with St. Dominic's challenge to
the Religious Nondiscrimination Rule whittled down to the rule's
application to its preference for Catholic students in admissions
and financial aid.
b. Level of Scrutiny
Having found St. Dominic's challenge to the Religious
Nondiscrimination Rule justiciable only as to the rule's
application to the school's Catholic preference, we next consider
what level of scrutiny to apply to that challenge. We evaluate,
in turn, St. Dominic's arguments for heightened scrutiny under
(1) Carson's interpretation of the Free Exercise Clause,
(2) Smith's interpretation of the Free Exercise Clause,
(3) the church-autonomy and religious-entanglement doctrines,
(4) the expressive-association doctrine, and
(5) the unconstitutional-conditions doctrine.
- 51 -i. Free Exercise: Carson Analysis
We begin with St. Dominic's argument that the Religious
Nondiscrimination Rule should receive strict scrutiny under the
Free Exercise Clause. To make this free-exercise claim,
St. Dominic first leans on the Supreme Court's line of cases
dealing with the exclusion of religious actors from generally
available benefits, which culminated most recently in the Court's
Carson decision. See 596 U.S. 767; Espinoza, 591 U.S. 464; Trinity
Lutheran, 582 U.S. 449. These cases make clear that strict
scrutiny applies if Maine tries to "disqualify some private
schools" from the tuition-assistance program "solely because they
are religious." Carson, 596 U.S. at 780 (quoting Espinoza, 591
U.S. at 487).27 This rule holds regardless of whether the exclusion
hinges on a school's "religious status" or on the "religious use"
to which a school proposes to put state-provided funds. Id. at
786 (quoting Espinoza, 591 U.S. at 477). Along those lines,
St. Dominic insists that its preference for Catholic students in
27We read this principle as a derivative of Smith's facial
neutrality framework: Where a school is "disqualified from [a]
generally available benefit 'solely because of [its] religious
character,'" Carson, 596 U.S. at 780 (quoting Trinity Lutheran,
582 U.S. at 462), the government has definitionally failed to act
neutrally under Smith. See id. at 781 ("[T]here is nothing neutral
about Maine's program. The State pays tuition for certain students
at private schools -- so long as the schools are not religious.");
Fulton, 593 U.S. at 533 ("Government fails to act neutrally when
it . . . restricts practices because of their religious nature.").
Nevertheless, because St. Dominic addresses its Carson-based
argument separately from its Smith analysis, we do the same.
- 52 -admissions and financial aid is one of several "examples of
protected 'religious uses' that together make up [its] 'religious
character,'" such that prohibiting this preference in the
tuition-assistance program effectively excludes St. Dominic solely
based on its religious character.28
As we suggested in finding St. Dominic's challenge to
the Religious Nondiscrimination Rule ripe, the rule does indeed
burden St. Dominic's religious exercise by prohibiting the school,
if it accepts tuition assistance, from continuing its Catholic
preference. That burden, in turn, requires that we scrutinize the
Religious Nondiscrimination Rule under the traditional
free-exercise framework of Smith, as we do in the next section of
this opinion. Contrary to what St. Dominic argues, though, the
mere fact that the rule imposes a burden on St. Dominic's free
exercise does not by itself require that we subject the rule to
strict scrutiny under Carson. Unlike the nonsectarian requirement
28 As far as we can tell, the Religious Nondiscrimination
Rule does not directly exclude any school from the
tuition-assistance program. In its complaint, St. Dominic
suggests -- without pointing to any statutory or regulatory
support -- that compliance with the MHRA is "a prerequisite to
being 'approved for tuition purposes.'" We need not determine
whether that is so, though, because in keeping with the Supreme
Court's free-exercise doctrine, we analyze the Religious
Nondiscrimination Rule as if the rule does directly exclude schools
that engage in religious discrimination. See Carson, 596 U.S. at
778 ("The Free Exercise Clause of the First Amendment protects
against 'indirect coercion or penalties on the free exercise of
religion, not just outright prohibitions.'" (quoting Lyng v. Nw.
Indian Cemetery Protective Ass'n, 485 U.S. 439, 450 (1988))).
- 53 -at issue in Carson, the Religious Nondiscrimination Rule does not
exclude schools solely because they are religious schools.
In Carson, the Court invalidated Maine's prior
nonsectarian requirement, which excluded from the
tuition-assistance program a school if it "promote[d] the faith or
belief system with which it [was] associated and/or present[ed]
the material taught through the lens of this faith." 596 U.S. at
775 (quoting Carson, 979 F.3d at 38). Because such faith-based
instruction was a "religious use" of funds uniquely tied to "the
mission of a private religious school," the Court explained, the
nonsectarian requirement effectively targeted religious schools as
such. Id. at 787 (quoting Our Lady of Guadalupe Sch. v.
Morrissey-Berru, 591 U.S. 732, 754 (2020)).
In contrast, religious discrimination is not a uniquely
religious practice. Whereas religious instruction is necessarily
religiously motivated, a school may engage in religious
discrimination against a student for religious or secular reasons.
For example, the school may so discriminate motivated not by its
own religious tenets but by negative stereotypes about followers
of the student's religion. Such discrimination, though based on
the student's religious beliefs, would not be based on the school's
religious beliefs. It would be, from the school's perspective,
entirely secular. In this way, religious discrimination is not
inherently a religious use of tuition-assistance funds.
- 54 -Similarly, St. Dominic has not shown that religious
discrimination is solely a practice of religious schools. Secular
schools -- like all institutions -- are equally capable of
discriminating against students on the basis of students'
religious beliefs and equally subject to the Religious
Nondiscrimination Rule. See Youth 71Five Ministries v. Williams,
160 F.4th 964, 979 (9th Cir. 2025) ("Government agencies, secular
corporations, and religious ministries alike might engage in
religion-based employment discrimination."), pet. for cert. filed,
No. 25-776 (Dec. 23, 2025). As such, the rule's prohibition on
that discrimination does not inevitably target only religious
schools.
Nor is this a case where the State is saying, in
practical effect, that religious schools must surrender their
status as religious schools in order to obtain public tuition
assistance. Cf. Trinity Lutheran, 582 U.S. at 462 ("[T]he
Department's policy puts Trinity Lutheran to a choice: It may
participate in an otherwise available benefit program or remain a
religious institution."). St. Dominic, specifically, does not
even attempt to show that the school would be unable to retain its
religious character if it made admissions and financial aid
decisions without regard to individual students' religious
affiliations. Rather, the school touts that it welcomes students
of all religions and does not allege that non-Catholic students
- 55 -would make up a significantly greater share of its student body
without the preference. Neither does it provide any evidence that,
without the Catholic preference, any enrolled Catholic student or
any prospective Catholic applicant would be deprived of financial
aid they would otherwise receive. Likewise, St. Dominic has not
developed a record suggesting that, generally, Maine religious
schools restrict admissions by religion. Cheverus High School, a
non-Diocesan Catholic school unaffiliated with St. Dominic, for
one, participates in the tuition-assistance program and does not
evidently discriminate against students on the basis of religion.
And Crosspoint, in this case's companion, alleges no policy as
explicit as St. Dominic's Catholic preference. Cf. Complaint
¶ 31, Crosspoint, 719 F. Supp. 3d 99 (No. 23-cv-00146) (describing
admissions policy of Bangor Christian School).29
The foregoing shows that the Religious Nondiscrimination
Rule does not exclude any school solely because of its religious
character. Rather, the rule excludes a school because it
discriminates against students on the basis of the students'
29 Our discussion of these other schools should not be
understood to express a preference for one religious
denomination's practices over another. See Cath. Charities
Bureau, Inc. v. Wis. Lab. & Indus. Rev. Comm'n, 605 U.S. 238,
247–48 (2025) (explaining First Amendment "principle of
denominational neutrality"). We note Cheverus and Crosspoint only
to point out that, just as secular schools are not inherently
immune to the Religious Nondiscrimination Rule, religious schools
are not invariably censured by the rule, either.
- 56 -religion, a practice that is neither uniquely religious nor
uniquely tied to religious schools. See Kim v. Bd. of Educ., 93
F.4th 733, 749 (4th Cir. 2024) (finding no Carson violation where
county "d[id] not let any private schools, religious or
nonreligious, participate in selecting the board of education
student member," reasoning that "[t]he process d[id] not exclude
students because of their religious exercise," "it exclude[d]
students who cho[]se not to attend public school for whatever
reason"). 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.
We therefore do not find that Carson renders the
Religious Nondiscrimination Rule per se not neutral. To find
otherwise would, in essence, be to hold that any state practice
imposing any burden on a religious school's religious practices
necessarily imposes a burden solely because the school is
religious -- and therefore triggers strict scrutiny. Such a ruling
would, in all but theory, eliminate the allowance for neutral,
generally applicable laws that incidentally burden religious
practice recognized by Smith, 494 U.S. at 878–82, and applied in
the cases that underpin Carson itself. See Trinity Lutheran, 582
U.S. at 460; Lukumi, 508 U.S. at 546. As discussed below, we are
not free to discard Smith based on an overly expansive
- 57 -interpretation of Carson, especially without any clarity as to
what, exactly, would replace Smith.30
ii. Free Exercise: Smith Analysis
We turn to applying Smith. As explained above, the
traditional Smith framework for free-exercise challenges provides
that "laws incidentally burdening religion are ordinarily not
subject to strict scrutiny under the Free Exercise Clause so long
as they are neutral and generally applicable." Fulton, 593 U.S.
at 533. We conclude that the Religious Nondiscrimination Rule is
likely both neutral and generally applicable and, therefore, not
subject to strict scrutiny under Smith.
(1) Neutrality
As to facial neutrality, the Religious Nondiscrimination
Rule proscribes not a religious practice but rather "educational
discrimination" "on the basis of . . . religion" in academics,
extracurriculars, research activities, occupational training,
athletic programs, admissions, financial aid, and the like. Me.
Stat. tit. 5, § 4602(1). Unlike the Religious Expression Rule,
then, the Religious Nondiscrimination Rule does not facially
30 In fact, during the pendency of this appeal, the Supreme
Court expressly declined to consider the question of "[w]hether
Employment Division v. Smith should be overruled," in granting
certiorari in a case concerning a Colorado sexual-orientation and
gender-identity nondiscrimination rule as applied to religious
preschools receiving public funds. St. Mary Cath. Par. v. Roy,
No. 25-581, 2026 WL 1052111 (U.S. Apr. 20, 2026) (mem.); Petition
for Writ of Certiorari, St. Mary, 2026 WL 1052111.
- 58 -target "a religious practice without a secular meaning." Lukumi,
508 U.S. at 533; see St. Mary Cath. Par. in Littleton v. Roy, 154
F.4th 752, 766 (10th Cir. 2025) (finding facially neutral
nondiscrimination rule that "does not mention religion except to
prohibit discrimination based on religious affiliation"), cert.
granted sub nom. St. Mary Cath. Par. v. Roy, No. 25-581, 2026 WL
1052111 (U.S. Apr. 20, 2026) (mem.). As discussed above,
discrimination on the basis of religion can be motivated by either
religious or secular considerations. Consequently, a law
prohibiting such discrimination across the board does not
improperly "infringe upon or restrict practices because of their
religious motivation." Lukumi, 508 U.S. at 533.
Nevertheless, St. Dominic argues that the Religious
Nondiscrimination Rule lacks facial neutrality because it
"subject[s] religious schools to a ban on 'religious
discrimination'" in admissions and financial aid. But the rule
subjects secular schools to the same ban: It protects students of
any or no religious faith from discrimination by any publicly
funded Maine school, religious or secular. Under the rule, a
secular school may not deny admission to a student merely because
that student's religious beliefs conflict with the school's
secular philosophy, just as a religious school may not deny
admission to a student merely because that student's religious
- 59 -beliefs conflict with the school's religious doctrine.31 Cf. Loe
v. Jett, 796 F. Supp. 3d 541, 569 (D. Minn. 2025) (finding ban on
schools requiring students to sign faith statements not facially
neutral because it "'restricts' [schools'] admissions practices
only 'because of their religious motivation'" (quoting Lukumi, 508
U.S. at 533)).32
Moreover, prohibiting religious discrimination is an
entirely proper -- and secular -- subject of legislation. Boyajian
v. Gatzunis, 212 F.3d 1, 5 (1st Cir. 2000) ("Prohibition of
religious discrimination is unquestionably an appropriate, secular
legislative purpose."); see also Williams v. California, 764 F.3d
1002, 1012 (9th Cir. 2014) (similar). Numerous antidiscrimination
laws bar religious discrimination. E.g., 42 U.S.C. § 2000a(a)
(banning "discrimination or segregation on the ground of . . .
religion" in public accommodations).33 Under St. Dominic's
31 Similarly unavailing is St. Dominic's argument that the
rule lacks facial neutrality because "[s]ecular [private] schools
may impose many different kinds of admission criteria: financial,
academic, athletic, family legacy, and ability to advance the
school's mission." Religious schools may impose each of these
criteria to the same extent as secular schools.
32 The plaintiffs in Loe also challenged a similar
nondiscrimination rule, but the court expressly declined to reach
that rule's own constitutionality, instead finding the rule
inseverable from the constitutionally infirm faith-statement ban
and invalidating it on that ground alone. Loe, 796 F. Supp. 3d at
578 n.57.
33 Even before the 2021 Amendments, the MHRA barred religious
discrimination in other realms, including public accommodations.
Me. Stat. tit. 5, § 4591 (2018). Indeed, it is possible this bar
- 60 -argument, all such laws would trigger strict scrutiny simply by
including the words "religion" or "religious." Cf. United States
v. Skrmetti, 605 U.S. 495, 512 (2025) ("This Court has never
suggested that mere reference to sex is sufficient to trigger
heightened scrutiny."); Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 64
(2001) ("Just as neutral terms can mask discrimination that is
unlawful, gender specific terms can mark a permissible
distinction.").
The Religious Nondiscrimination Rule's application to
St. Dominic's Catholic preference is also nonfacially neutral. In
determining whether a facially neutral law is nevertheless
nonneutral, courts must "survey meticulously the circumstances of"
government action to ferret out "governmental hostility [that] is
masked." Lukumi, 508 U.S. at 534 (citation omitted). St. Dominic
advances four arguments on this front, none of which is likely to
succeed.
First, St. Dominic argues that the Religious
Nondiscrimination Rule constitutes a religious gerrymander. A
religious gerrymander arises where a law "target[s] [a plaintiff]
and their religious practices," such that " the burden of [the
on religious discrimination in public accommodations did then (and
does now) apply to schools regardless of participation in the
tuition-assistance program. See id. § 4553(8)(J) (defining "place
of public accommodation" to include a "nursery, elementary,
secondary, undergraduate or postgraduate school or other place of
education").
- 61 -law], in practical terms, falls on [religious] adherents but almost
no others." Lukumi, 508 U.S. at 535–36. In St. Dominic's view,
the Religious Nondiscrimination Rule is a religious gerrymander
because it "punish[es] religious schools when they pursue their
religious missions but leave[s] secular private schools free to
pursue their missions without fear." However, as discussed above,
the rule does not proscribe St. Dominic's mission-oriented
admissions practices as such. See supra Section III.A.3.a.i. We
deal here only with the rule's application to the distinct practice
of preferring (as among applicants who agree to support the
school's mission) one applicant over another in admissions and
financial aid based on that applicant's religion. And as to that
practice, the rule erects the same barriers for religious and
secular schools alike, with no indication that its burden "in
practical terms, falls on" religious schools "but almost no
others." Lukumi, 508 U.S. at 536. Although this application of
the rule "may end up having greater consequence for religious
[schools] . . . inasmuch as they are more likely than their secular
counterparts to wish to exclude students of particular faiths,"
Christian Legal Soc'y Chapter of the Univ. of Cal., Hastings Coll.
of the L. v. Martinez, 561 U.S. 661, 700 (2010) (Stevens, J.,
concurring), that, alone, does not prove a gerrymander, see Lukumi,
508 U.S. at 535 ("[A]dverse impact will not always lead to a
finding of impermissible targeting.").
- 62 -Second, St. Dominic points to the timing of the 2021
Amendments -- enacted while the Supreme Court was considering
whether to grant certiorari in Carson -- to argue that the State
designed the 2021 Amendments as what it calls an "end-run" around
Carson by creating a "poison pill" that will deter religious
schools from accepting state tuition funds. The timing does
suggest that the Carson litigation spurred the amendments.34 That
does not mean, however, that the amendments were motivated by
religious animus or intended as an impermissible workaround to an
anticipated Supreme Court decision. We, like the district court,
St. Dominic, 744 F. Supp. 3d at 74–75, are convinced that the Maine
legislature added religion as a prohibited ground for
discrimination in education in order to align the MHRA's education
provisions with its employment and housing provisions, which
already protected individuals in Maine from religious
discrimination. Me. Stat. tit. 5, §§ 4571, 4581 (2018). The
original bill and MHRC testimony in support thereof buttress this
conclusion. See supra Section I.B.2. Contrary to St. Dominic's
assertion, then, this is not a case where a government actor's
"repeated changes in position" as to the application of a policy
to a particular individual indicate that the actor is targeting
34 Though only in part; the amendments reached far beyond the
scope of matters relevant to Carson. See, e.g., 2021 Amendments
secs. 4, 5 (codified at Me. Stat. tit. 5, §§ 4571, 4572(1)) (adding
"familial status" as a prohibited classification in employment).
- 63 -that individual's beliefs. Meriwether v. Hartop, 992 F.3d 492,
515 (6th Cir. 2021). It is, instead, a case of the State seeking,
through the full legislative process, to align its protections for
students' religious freedom with previously enacted protections
for workers and tenants. Cf. id. (finding changes in university's
basis for disciplining individual, "along with the alleged
religious hostility [in decisionmakers' statements]," allowed for
"plausible inference" of religious targeting at motion-to-dismiss
stage).
Third, and relatedly, St. Dominic contends that the 2021
Amendments were likely motivated by hostility toward
religion -- i.e., "a negative normative evaluation" of the specific
religious practices at issue here. Masterpiece Cakeshop v. Colo.
C.R. Comm'n, 584 U.S. 617, 639 (2018) (citation modified). In
support of this narrative, St. Dominic points to three statements
made in the year-plus following the 2021 Amendments' June 2021
passage:
2021 Frey Statement: On December 8, 2021 -- the day the
Supreme Court heard oral argument in Carson -- Maine Attorney
General Aaron Frey stated that "[s]chools that require students to
undergo religious instruction are excluded [from the
tuition-assistance program] because the education they provide is
not equivalent to a public education." He also described the
schools involved in Carson as "want[ing] to continue to
- 64 -discriminate against individuals based on their status in a
protected class."
2022 Frey Statement: On June 21, 2022 -- the day the
Court released its Carson decision -- Frey issued a statement
expressing his disappointment with the decision. He said:
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.
He continued by explaining that the 2021 Amendments
"would require some religious schools to eliminate their current
discriminatory practices" and expressed interest in further
"statutory amendments to address the Court's decision and ensure
that public money is not used to promote discrimination,
intolerance, and bigotry."
2022 Fecteau Statement: On June 25, 2022, in response
to a tweet reading, "Maine just changed the guidelines to exclude
schools that discriminate against LGBTQ+ students," Maine House
Speaker Ryan Fecteau tweeted, "Sure did. Anticipated the ludicrous
decision from the far-right [Supreme Court]."35
The acronym LGBTQ+ stands for "'lesbian, gay, bisexual,
35
transgender and queer' with a '+' sign to recognize the limitless
sexual orientations and gender identities used by members of the
LGBTQ+ community." MacRae v. Mattos, 106 F.4th 122, 128 n.5 (1st
- 65 -St. Dominic argues that the above statements evince
hostility toward religious practices or religious schools per se.
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. See Polk v. Montgomery Cnty. Pub. Schs., 166 F.4th 400,
414 (4th Cir. 2026) (framing neutrality inquiry as whether law
"was enacted 'because of' and not 'in spite of' its effect on
religion." (citation modified)). And the record does not suggest
that Fecteau or Frey find the discrimination in question any less
distasteful when motivated by secular rather than religious
reasons or when practiced by secular rather than religious schools.
We need not determine if that is so, though, because St. Dominic's
hostility argument fails for the more straightforward reason that
whatever subjective states of mind one might infer in Frey and
Fecteau as individuals, their three post-enactment statements
provide little probative value in determining why the State
government as a whole adopted the 2021 Amendments. In enacting
laws, Maine speaks and acts through its entire elected legislature
and its elected governor. Me. Const. art. IV, §§ 1, 2. Attorney
Cir. 2024) (citation modified), cert. denied, 145 S. Ct. 2617
(2025) (mem.).
- 66 -General Frey, who is neither a legislator nor the governor, had no
vote at all in enacting the 2021 Amendments.36 And while Fecteau
did have a role as a legislative leader, "[w]hat motivates one
legislator to [tweet] about a statute is not necessarily what
motivates scores of others," so courts must "eschew guesswork"
based on one-off statements by individual legislators. United
States v. O'Brien, 391 U.S. 367, 384 (1968).
Attempting to buttress its hostility argument,
St. Dominic points to Mid Vermont Christian School v. Saunders,
151 F.4th 86 (2d Cir. 2025), but that case is inapposite. Mid
Vermont focused on an enforcement action taken against a religious
school shortly after the official overseeing the enforcement
action expressed hostility toward that specific school's religious
views. Id. at 89–90, 93–94. So, of course, the official's
statements provided direct insight into why that same official
subsequently took action against the school. Id. at 94. Here, we
have no such alignment of expression and actor -- nor any
enforcement action at all. Cf. Masterpiece Cakeshop, 584 U.S. at
634–36 (finding civil rights enforcement order against bakery
violated Free Exercise Clause where members of enforcement body
Although the 2022 Frey Statement referred to "statutory
36
amendments to address the Court's decision," this statement came
roughly a year after passage of the 2021 Amendments. It nowhere
implies Frey had any role in that earlier enactment.
- 67 -expressed hostility toward bakery owner's religious beliefs during
hearings leading up to action).
Finally, St. Dominic makes one last argument regarding
nonneutrality, pointing to a 2023 amendment of the MHRA's
definition of "educational institution." Prior to 2023,
single-sex schools had been excluded from that definition and
thereby exempted from the MHRA's education provisions. Me. Stat.
tit. 5, § 4553(2-A) (2022). In its initial complaint in this
case's companion, Crosspoint alleged this preferential treatment
of single-sex schools showed that Maine was not treating religious
schools fairly. Complaint ¶¶ 79, 105, 112, Crosspoint, 719 F.
Supp. 3d 99 (No. 23-cv-00146). The Maine legislature then acted
to eliminate the single-sex exemption, making the MHRA apply to
single-sex schools on the same terms as all other schools. An Act
to Amend the Definition of "Educational Institution" Under the
Maine Human Rights Act to Include Single-sex Educational
Institutions, Me. Pub. L. 2023, ch. 188, 2023 Me. Laws 370
(codified at Me. Stat. tit. 5, § 4553(2-A)).
This change, St. Dominic implies, evidences "Maine's
determination to exclude disfavored religious schools." We cannot
see how. While "repeated changes in position" and "an evolving
policy" in a single case may give rise to a "plausible inference"
of pretext, Meriwether, 992 F.3d at 515, they do not inexorably do
so. Here, St. Dominic does not allege the amendment altered the
- 68 -MHRA's treatment of religious schools in any way. And even
assuming the 2023 amendment was in direct response to Crosspoint's
complaint, no adverse inference arises. A litigant pointed out a
potential gap in the MHRA, and the State responded by eliminating
that gap so that the MHRA now applies to every primary or secondary
school in Maine that receives public funds. That evinces not
hostility but rather a preference for consistency in the MHRA's
application within Maine's borders and a willingness to listen to
litigants' complaints. See St. Mary, 154 F.4th at 767 (finding no
evidence of hostility in removal of exception to nondiscrimination
rule where change came in response to religious schools'
complaints).
We thus find the MHRA's bar on religious discrimination
to be neutral both facially and nonfacially, at least to the extent
it prohibits a school from giving outright preference to one
student over another in admissions and financial aid based on the
students' religious beliefs.
(2) General Applicability
We find the Religious Nondiscrimination Rule generally
applicable, as well. A law is not generally applicable when it
"in a selective manner impose[s] burdens only on conduct motivated
by religious belief." Lukumi, 508 U.S. at 543. As relevant here,
one way a law may lack general applicability is if it "prohibits
religious conduct while permitting secular conduct that undermines
- 69 -the government's asserted interests in a similar way." Fulton,
593 U.S. at 534.37 Invoking this principle, St. Dominic argues
that the Religious Nondiscrimination Rule lacks general
applicability because, if St. Dominic were to accept tuition
assistance, the rule would apply to St. Dominic, a private,
in-state, religious K–8 school, but not to two sets of supposed
comparators: (1) private, out-of-state, secular K–12 schools
participating in the tuition-assistance program; and (2) private,
secular postsecondary institutions receiving public funding
through student grants. We consider each in turn.
St. Dominic first stresses that the Religious
Nondiscrimination Rule does not apply to out-of-state, private,
secular K–12 schools that accept Maine students underwritten by
the State's tuition-assistance program. True. But neither does
it apply to an out-of-state, religious school participating in the
program.38 That geographical limitation on the rule's coverage has
A law may also evince a lack of general applicability
37
where it provides "a mechanism for individualized exemptions."
Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 526 (2022) (quoting
Fulton, 593 U.S. at 533). St. Dominic does not contend the
Religious Nondiscrimination Rule provides for any such exemptions.
38At least one school that St. Dominic identifies as a
religious school -- Cardigan Mountain School -- is an out-of-state
school that has received tuition assistance. 2015–16 Tuition Rates
for Private Schools, Me. Dep't of Educ.,
https://www.maine.gov/doe/sites/maine.gov.doe/files/inlinefiles/FY16_PrivateSchoolsApprovedTuition_14Jan2019.pdf
[https://perma.cc/2GRS-NZW8] (last visited Mar. 13, 2023).
- 70 -nothing at all to do with the secular or religious nature of the
schools. Rather, the MHRA as a whole does not apply to conduct
outside of Maine. Judkins, 483 F. Supp. 2d at 65–66. In this
respect, Maine treats secular schools and religious schools that
accept tuition assistance exactly alike: If they are in Maine,
the MHRA applies; if they are outside Maine, it does not apply.
St. Dominic responds by encouraging us to analyze
general applicability through the blueprint drawn by Tandon v.
Newsom, 593 U.S. 61 (2021) (per curiam). There, in a per curiam
opinion, the Supreme Court granted plaintiffs seeking to hold
at-home religious gatherings an emergency injunction pending
appeal against a California COVID-19 regulation that limited the
size of private gatherings in homes -- including for religious
purposes -- to three households. Tandon, 593 U.S. at 62–63. The
Court found the regulation likely not generally applicable because
it allowed larger, secular gatherings at "hair salons, retail
stores, personal care services, movie theaters, private suites at
sporting events and concerts, and indoor restaurants." Id. at 63.
In doing so, the Court explained that the government may not "treat
any comparable secular activity more favorably than religious
exercise." Id. at 62. Whether secular conduct is comparable to
the religious exercise at issue, the Court stated, must be judged
according to "the asserted government interest that justifies the
regulation at issue." Id. If two activities -- one secular and
- 71 -one religious -- effectuate or undermine the asserted government
interest(s) in the same manner, then those two activities are
comparators. See id.
In Tandon, the "religious exercise at issue" was the
in-home religious gathering of more than three households. Id.
The California regulation prohibited all such exercise; no similar
religious exercise fell on the unregulated side of the line. Here,
the religious exercise at issue is private, religious education.
But unlike in Tandon, the State does not put all private religious
schools -- or any particular form of private religious
schooling -- on the regulated side of its lines. Rather, the exact
same religious exercise -- private religious schooling -- may be
regulated or unregulated, depending on a school's location.
In any event, even by Tandon's measure, St. Dominic's
general-applicability argument fails in light of the interests
served by the MHRA. It is not the Commissioners' burden to prove
that the State's interests make out-of-state schools and
postsecondary institutions inappropriate comparators for
St. Dominic's religious exercise. Rather, because St. Dominic
retains the burden to show that the challenged rules are not
neutral and generally applicable, Kennedy v. Bremerton Sch. Dist.,
597 U.S. 507, 525 (2022), we must determine whether St. Dominic
has demonstrated that religious discrimination at out-of-state
- 72 -schools undermines the State's interests to the same degree as
religious discrimination at in-state schools.39
Under that framework, St. Dominic has failed to
establish comparability. As we have noted, the 2021 Amendments
sought to align the MHRA's education provisions with its other
provisions. See supra Section I.B.2. Implicit throughout the
MHRA is a limited interest in combatting discrimination within
Maine specifically. Judkins, 483 F. Supp. 2d at 65–66. For
example, the MHRA's employment provisions apply to out-of-state
employers only if they "employ[] any number of employees whose
usual place of employment is in this State." Me. Stat. tit. 5,
§ 4553(4). Likewise, the MHRA limits the MHRC's jurisdiction to
in-state conduct. See id. § 4566 (granting MHRC jurisdiction to
"investigat[e] all conditions and practices within the State which
allegedly detract from the enjoyment, by each inhabitant of the
State, of full human rights and personal dignity"). There is no
evidence that, in enacting the 2021 Amendments, the legislature
had or pursued any interest in extending the jurisdiction of the
MHRC to include activity in other states. Rather, its interests
in combatting discrimination generally and state-funded
39 We recognize that, after Tandon, there has been some
uncertainty in the lower courts about who bears the burden of
showing comparability. See William T. Sharon, Religious and
Secular Comparators, 30 Geo. Mason L. Rev. 763, 767, 803–19 (2023).
However, we read the Kennedy opinion as squarely placing that
burden on the plaintiff. See 597 U.S. at 525.
- 73 -discrimination specifically in education were, from the start,
qualified by the general and pre-existing jurisdictional
limitation that qualifies all interests that the MHRC is charged
with pursuing. The MHRA's focus on conduct within Maine's borders
is hardly unusual and implies no improper purpose or effect
relevant to our inquiry. See Healy v. Beer Inst., Inc., 491 U.S.
324, 336 (1989) (parsing Commerce Clause claim and cautioning
against "the application of a state statute to commerce that takes
place wholly outside of the State's borders" (citation modified)).
In the words of the Commissioners' brief on appeal, "Maine's
interest in stopping entities outside of Maine from discriminating
is simply not the same as its interest in stopping entities inside
Maine from doing so."
St. Dominic separately points to private, secular
postsecondary institutions receiving public funding as supposed
comparators that are not subject to the MHRA's education
provisions. Me. Stat. tit. 5, § 4553(2-A). Again, though,
St. Dominic misperceives the line that Maine has drawn between
those schools subject to the rule and those not subject. The
MHRA's education provisions do not apply to any private
postsecondary institution, whether secular or religious. Indeed,
private, postsecondary institutions are not a part of the
tuition-assistance program; if they receive public funding at all,
they do so through a separate system of student grants. Contrast
- 74 -Me. Stat. tit. 20-A, §§ 5203, 5204 (establishing
tuition-assistance programs for elementary and secondary
students), with id. § 11612 (establishing the Maine State Grant
Program for post-secondary students). The line here is drawn based
on grade level, not religion.
Looking to the interests at play, that line makes sense.
As the Commissioners document, unlike K–12 schooling,
postsecondary school "is entirely voluntary," "relies primarily on
the student and their family for funding," and educates older
students who are "more able than their younger counterparts to
determine what instruction is appropriate for them or consistent
with their knowledge and beliefs." Tandon explained that
"[c]omparability is concerned with the risks various activities
pose." 593 U.S. at 62. Self-evidently, schools that primarily
educate adults do not pose the same risk of undermining the State's
interest in "preventing educational discrimination against
children," as schools that primarily educate children. See Parents
Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701,
746–47 (2007) (stressing costs of race-based discrimination in
primary and secondary schools in particular). Additionally,
Maine's interest in "preventing public funds from being used to
fund discrimination" carries significantly more salience in the
context of K–12 schools (which can receive between approximately
$12,000 and $14,000 per student per year) than private
- 75 -postsecondary schools (which can receive only $2,500 per student
per year).40 Finally, because postsecondary institutions generally
enjoy a more robust right to academic freedom under the First
Amendment than primary or secondary schools, Asociacion de
Educacion Privada de P.R., Inc. v. Garcia-Padilla, 490 F.3d 1, 11
n.6 (1st Cir. 2007), Maine's power to regulate is more
circumscribed -- and its antidiscrimination interests consequently
less robust -- at the postsecondary level.
In sum, the MHRA's coverage separates schools along two
innocuous lines: (1) a line between in-state and out-of-state
schools and (2) a line between K–12 schools and postsecondary
schools. In both cases, concerns unrelated to religion -- location
and grade level -- separate the regulated from the unregulated.
And in both cases, there are both religious and secular schools on
each side of the line. We are at a loss to see how these lines,
entirely unrelated to religious exercise, somehow "in a selective
manner impose burdens only on conduct motivated by religious
belief." Lukumi, 508 U.S. at 543.
These lines also comport with how the Supreme Court has
approached the general-applicability inquiry. In Roman Catholic
Diocese of Brooklyn v. Cuomo, for instance, the Supreme Court
40Compare Tuition Rates, supra (elementary and secondary
schools), with Maine State Grant Program, supra (postsecondary
schools).
- 76 -preliminarily enjoined a COVID-19-related executive order in New
York that "impose[d] very severe restrictions on attendance at
religious services in areas classified as 'red' or 'orange' zones."
592 U.S. 14, 15–16 (2020) (per curiam). The order lacked general
applicability,41 the Court found, because it treated religious
conduct worse than secular conduct within the same zone. See id.
at 17 ("In a red zone, while a synagogue or church may not admit
more than 10 persons, businesses categorized as 'essential' may
admit as many people as they wish."); id. ("The disparate treatment
is even more striking in an orange zone."). These within-zone
comparisons suggest that we should similarly compare the treatment
of in-state, religious K–12 schools in the tuition-assistance
program to their geographical and program peers: in-state, secular
K–12 schools in the tuition-assistance program.
Where, as here, the government draws a line (or lines)
along innocuous contours, in a manner consistent with the
underlying government interests at play, we will not subject that
innocuous line to heightened scrutiny simply because some
religious actors -- along with some secular ones -- fall on one
side of that line, while some secular actors -- along with some
41 Although the Court in Roman Catholic Diocese -- and in
Tandon, for that matter -- did not clearly delineate between
neutrality and general applicability in its analysis, we have
treated both cases as concerning primarily general applicability.
See, e.g., Brox v. Woods Hole, 164 F.4th 37, 44–45, 47 (1st Cir.
2026).
- 77 -religious ones -- fall on the other. Cf. Skrmetti, 605 U.S. at
517–19 (upholding an allegedly discriminatory line on the basis
that it was drawn based on medical use, rather than between genders
or sexes, even though individuals with certain gender identities
fell disproportionately on the disfavored side of the line). A
contrary holding would largely eviscerate Smith's accommodation of
neutral, generally applicable laws. For example, under
St. Dominic's approach, a party could challenge Title VII's
employment discrimination protections on the grounds that they
offend Tandon by exempting "all small employers -- religious and
secular alike," while covering some large, religious employers.
McMahon v. World Vision, Inc., 704 F. Supp. 3d 1121, 1142–43 (W.D.
Wash. 2023) (emphasis omitted), rev'd on other grounds, 147 F.4th
959 (9th Cir. 2025). Indeed, at least one plaintiff has already
filed such a challenge, which a court in the Western District of
Washington rejected, explaining that the proper comparison is
between "small religious employers" and "small secular employers."
Id. at 1142.
In its opening brief, St. Dominic "preserve[s] the
argument that Smith was wrongly decided for Supreme Court review."
St. Dominic remains free to seek such review through a writ of
certiorari. But St. Dominic rightly recognizes that it cannot
press such an argument here. And, just as the Constitution forbids
us from expressly overruling Supreme Court precedent, the
- 78 -Constitution also forbids us from attempting such an overruling
sub silentio. See U.S. Const. art. III, § 1 (placing the Supreme
Court above lower courts); Arias v. Herzon, 150 F.4th 27, 42 (1st
Cir. 2025) ("[A]s a lower court, we are required to follow the
Court's precedents, not treat them as but shells of their former
selves."). As with St. Dominic's Carson argument, we therefore
will not -- indeed, cannot -- adopt St. Dominic's preferred
interpretation of Tandon in a manner that would extinguish a
Supreme Court precedent that the Court has regularly applied for
thirty-five years. See, e.g., Mahmoud v. Taylor, 606 U.S. 522,
564–65 (2025); Kennedy, 597 U.S. at 525–26; Fulton, 593 U.S. at
533; Trinity Lutheran Church, 582 U.S. at 460; Christian Legal
Soc'y, 561 U.S. at 694 n.24, 697 n.27;42 Lukumi, 508 U.S. at 531;
Smith, 494 U.S. at 881; see also St. Mary, 2026 WL 1052111, at *1
(granting certiorari but declining to consider whether Smith
should be overruled).
We thus hold that the application of the Religious
Nondiscrimination Rule to prevent St. Dominic, if it accepts
tuition assistance, from giving preference to Catholic students in
admissions and financial aid does not warrant heightened scrutiny
under Smith.
In Christian Legal Society, the Court rejected a
42
free-exercise challenge to an "all-comers" nondiscrimination
policy based on Smith. 561 U.S. at 697 n.27.
- 79 -iii. Church Autonomy and Religious Entanglement
St. Dominic alternatively asserts that the Religious
Nondiscrimination Rule likely warrants strict scrutiny because it
violates the school's church-autonomy rights under the First
Amendment by impermissibly entangling the State in the school's
internal religious affairs.
The "church autonomy doctrine," on which St. Dominic
relies, "protect[s] the right of churches and other religious
institutions to decide matters of faith and doctrine without
government intrusion." Our Lady of Guadalupe Sch., 591 U.S. at
746 (citation modified). This "limit[s] the role of civil courts
in the resolution of religious controversies that incidentally
affect civil rights." Serbian E. Orthodox Diocese for U.S. & Can.
v. Milivojevich, 426 U.S. 696, 710 (1976). For example, "the First
Amendment prohibits civil courts from resolving church property
disputes on the basis of religious doctrine and practice." Jones
v. Wolf, 443 U.S. 595, 602 (1979).
Here, assuming religious schools possess church-autonomy
rights, the Religious Nondiscrimination Rule's bar on a school
giving preference to one student over another in admissions and
financial aid based on the two students' religious affiliations
does not infringe those rights. The rule would not require any
material or entangling judicial inquiry into matters of faith or
doctrine. As we have explained, the prohibition on discrimination
- 80 -on the basis of a student's religion does not hinge on the school's
doctrinal reasons for doing so. Rather, the question is solely
"whether [the discrimination] occurred because of an individual's
religious beliefs or would not have occurred but for the
individual's religion." Finnemore, 645 A.2d at 17. The inquiry
required by the rule is a question of civil rights that
incidentally affects religious exercise, not vice versa. Cf.
Milivojevich, 426 U.S. at 720 (applying doctrine to state-court
order "to reinstate as Bishop one who espoused views regarded by
the church hierarchy to be schismatic"); Kedroff v. St. Nicholas
Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 115
(1952) ("This controversy concerning the right to use St. Nicholas
Cathedral is strictly a matter of ecclesiastical
government . . . .").
While St. Dominic asserts that "a religious school's
religious admissions criteria, just like a church's membership
criteria, are entirely protected from government intrusion," it
struggles to marshal any support for such a sweeping statement of
law. Instead, it cites only to (1) a Supreme Court case concerning
the defrocking of a Serbian orthodox bishop stemming from a church
schism, Milivojevich, 426 U.S. at 698–99, 706, 709, 713–14; (2) our
own decision affirming dismissal of a priest's tort suit against
the church for which he had been working at the time of his alleged
injuries, Dowd v. Soc'y of St. Columbans, 861 F.2d 761, 763–64
- 81 -(1st Cir. 1988); and (3) a decision from a Texas state court
collecting cases from other Texas state courts, a Michigan state
court, a Pennsylvania state court, and the Eastern District of
Pennsylvania, In re St. Thomas High Sch., 495 S.W.3d 500, 512 &
n.1 (Tex. App. 2016). While the Supreme Court has separately,
under the "ministerial exception" doctrine, provided protection
for "the employment relationship between a religious institution
and its ministers," Hosanna-Tabor, 565 U.S. at 188, the Court has
not, to date, extended this doctrine to religious school students,
and St. Dominic has not clearly presented any argument, let alone
a developed one, as to why we should independently do so now.43
Accordingly, we treat the issue as waived for purposes of this
particular appeal. See Igartúa v. United States, 626 F.3d 592,
603 (1st Cir. 2010) ("An argument raised in a perfunctory or not
serious manner is waived.").44
43 Moreover, it is not clear the ministerial exception as it
currently stands can even be used as the basis of a claim, rather
than as a defense. See Hosanna-Tabor, 565 U.S. at 195 n.4
(describing the ministerial exception as "an affirmative defense
to an otherwise cognizable claim"); Youth 71Five, 160 F.4th at
983–84 (concluding that the ministerial exception cannot form the
basis for a standalone claim under 42 U.S.C. § 1983).
44 One amicus to this case insists that the "ministerial
exception" should extend to church congregants, but "[a]mici
cannot interject into a case issues which the litigants have chosen
to ignore." Airport Impact Relief, Inc. v. Wykle, 192 F.3d 197,
205 n.3 (1st Cir. 1999).
- 82 -St. Dominic's claim also relies heavily on a single
sentence from Carson, which warned that "scrutinizing whether and
how a religious school pursues its educational mission would . . .
raise serious concerns about state entanglement with religion and
denominational favoritism." 596 U.S. at 787. But -- as with the
rest of Carson -- we do not read this language as creating a new
test for whether government action violates the religion clauses.
Instead, the Court was simply explaining why "use-based
discrimination is [no] less offensive to the Free Exercise Clause"
than "status-based discrimination." Id. at 787–88. That is, the
government cannot escape strict scrutiny simply by reformulating
a status-based exclusion (e.g., schools that are Catholic) as a
use-based exclusion (e.g., schools that promote Catholicism). See
id.
St. Dominic instead reads Carson as "forbid[ding]"
states from "examin[ing religious schools'] admission policies,
codes of conduct, and practices" and using such examination to
enforce laws against religious schools. But that reasoning would
apply equally to the MHRA's prohibition on race, sex, or disability
discrimination, provisions that even St. Dominic does not contend
violate its rights. See Christian Legal Soc'y, 561 U.S. at 702–03
(Stevens, J., concurring) (noting similar lack of limiting
principle). What is more, that interpretation of Carson ignores
Smith's accommodation of neutral, generally applicable laws. That
- 83 -is perhaps why, in addition to excerpting a single sentence from
Carson and a single sentence from an employment case, see Our Lady
of Guadalupe Sch., 591 U.S. at 746, St. Dominic relies for its
argument primarily on a quartet of pre-Smith cases. See Kedroff,
344 U.S. at 115; Milivojevich, 426 U.S. at 713–14; NLRB v. Cath.
Bishop of Chi., 440 U.S. 490, 502 (1979); Dowd, 861 F.2d at 764.
In short, we find no interference with St. Dominic's
church-autonomy rights in the Religious Nondiscrimination Rule's
application to the school's Catholic preference and decline
St. Dominic's invitation to expand significantly the Supreme
Court's religious-entanglement caselaw to forbid a state from
enacting a neutral, generally applicable law that comports with
Smith and other key precedents.
iv. Expressive Association
We turn next to St. Dominic's argument that the
Religious Nondiscrimination Rule likely interferes with its First
Amendment right to expressive association and, as such, deserves
strict scrutiny.45 The Supreme Court has characterized this right
as follows: "[A] regulation that forces [a] group to accept
members it does not desire . . . may impair the ability of the
original members to express only those views that brought them
45 St. Dominic also raises a First Amendment challenge to the
MHRA on compelled-speech grounds; that challenge, however, is
directed solely at the Religious Expression Rule, so we need not
consider it further.
- 84 -together. Freedom of association therefore plainly presupposes a
freedom not to associate." Roberts v. U.S. Jaycees, 468 U.S. 609,
623 (1984). A law that infringes that freedom will be
unconstitutional unless it withstands strict scrutiny. Id. To
determine whether a law infringes the freedom of association, we
must ascertain whether "the presence of [the unwanted persons]
affects in a significant way the group's ability to advocate public
or private viewpoints." Boy Scouts of Am. v. Dale, 530 U.S. 640,
648 (2000); see also Bd. of Dirs. of Rotary Int'l v. Rotary Club
of Duarte, 481 U.S. 537, 548–49 (1987) (upholding the application
of a state nondiscrimination law that barred private Rotary Clubs
from excluding women from full membership because the challenged
law did not "affect in any significant way the existing members'
ability to carry out their various purposes").
St. Dominic devotes three pages of its opening brief and
another three of its reply to arguing that "forcing [it] to allow
unwanted members or expression violates [its]
expressive-association rights if it 'affects in a significant way
the [school's] ability to advocate public or private viewpoints.'"
But St. Dominic offers nary a word to support any suggestion that
precluding it from preferencing Catholic students in admissions or
financial aid will somehow burden its expressive-association
rights. To the contrary, St. Dominic admits that it "welcomes
non-Catholics 'willing to learn in a thoroughly Catholic
- 85 -educational environment.'" See Jaycees, 468 U.S. at 627 (finding
no expressive-association violation where group already allowed
unwanted members -- women -- to participate in much of its
activities); Rotary Int'l, 481 U.S. at 549 n.8 (same).
To support the claimed burden on its
expressive-association rights, St. Dominic points instead to its
complaint that the MHRA would force it to accept students who do
not support its mission and to allow competing religious
expression. But we have already found that the Religious
Nondiscrimination Rule does not prohibit St. Dominic's
mission-oriented admissions practices and that the Religious
Expression Rule may not force St. Dominic to permit competing
religious expression. All we consider here is the Religious
Nondiscrimination Rule's application to St. Dominic's preference
for Catholic students in admissions and financial aid. And
St. Dominic has made no showing that requiring the school to
evaluate non-Catholic applicants on an equal footing with Catholic
applicants would itself significantly hinder "the group's ability
to advocate public or private viewpoints." Dale, 530 U.S. at 648;
see also Runyon v. McCrary, 427 U.S. 160, 176 (1976) (rejecting
schools' expressive-association claim where "there is no showing
that discontinuance of the discriminatory admission practices
would inhibit in any way the teaching in these schools of any ideas
or dogma" (citation modified)). In short, on this record, we find
- 86 -no burden on St. Dominic's associational rights. See Dale, 530
U.S. at 653 ("[A]n expressive association can[not] erect a shield
against antidiscrimination laws simply by asserting that mere
acceptance of a member from a particular group would impair its
message.").
v. Unconstitutional Conditions
St. Dominic lastly contends that strict scrutiny applies
because the Religious Nondiscrimination Rule runs afoul of the
unconstitutional-conditions doctrine. The
unconstitutional-conditions doctrine prohibits the government, in
certain situations, from conditioning the grant of a benefit on
the surrender of a constitutional right. Agency for Int'l Dev. v.
All. for Open Soc'y Int'l, Inc., 570 U.S. 205, 214 (2013). In
other words, it limits the government's ability to argue that,
although it could not constitutionally impose a restriction on an
entity directly, it can nevertheless impose the same restriction
as a condition of that entity's voluntary acceptance of public
funds. Rumsfeld v. F. for Acad. & Institutional Rts., Inc. (FAIR),
547 U.S. 47, 59 (2006). Here, though, the Commissioners make no
such argument. Rather, in defending the Religious
Nondiscrimination Rule, the Commissioners have treated the rule as
an attempted direct restriction on the school's conduct -- and we
have done the same. We have found that the Religious
Nondiscrimination Rule does not require the school to surrender
- 87 -its free-exercise rights to receive tuition assistance. And we
have found that St. Dominic has failed to articulate any burden on
its right to expressive association from the rule. We have, in
short, analyzed the rule as a direct restriction and found no
constitutional infirmity to be immunized by the acceptance of state
funds. Because "a funding condition cannot be unconstitutional if
it could be constitutionally imposed directly," id. at 59–60,
St. Dominic's unconstitutional conditions theory does not change
our conclusion.
c. Rational Basis Review
Concluding that St. Dominic has not demonstrated
heightened scrutiny should apply, we employ rational basis review,
under which a law survives if "rationally related" to a "legitimate
end." Corp. of Presiding Bishop of Church of Jesus Christ of
Latter-day Saints v. Amos, 483 U.S. 327, 339 (1987). Under this
forgiving standard, the Religious Nondiscrimination Rule passes
muster.
Maine's aim to expand the definition of unlawful
educational discrimination covered by the MHRA certainly qualifies
as a legitimate end. St. Dominic claims that a government can
have no legitimate interest in barring religious discrimination by
religious schools. But, as we have noted, "[p]rohibition of
religious discrimination is unquestionably an appropriate, secular
legislative purpose." Boyajian, 212 F.3d at 5. And the Supreme
- 88 -Court has found not only a legitimate, but a "compelling,"
"fundamental, overriding interest" in "eradicating racial
discrimination in education," even where the discriminatory
practices in question derived from the subject school's sincerely
held religious beliefs. Bob Jones Univ. v. United States, 461
U.S. 574, 604 (1983); see also Alfred L. Snapp & Son, Inc. v.
Puerto Rico, ex rel., Barez, 458 U.S. 592, 609 (1982) ("This Court
has had too much experience with the political, social, and moral
damage of discrimination not to recognize that a State has a
substantial interest in assuring its residents that it will act to
protect them from these evils."). Though not dispositive, we also
note that, here, Maine pursues not only a general
antidiscrimination interest but also an interest in preventing
publicly funded discrimination specifically. See City of Richmond
v. J.A. Croson Co., 488 U.S. 469, 492 (1989) (plurality opinion)
("[A]ny public entity, state or federal, has a compelling interest
in assuring that public dollars, drawn from the tax contributions
of all citizens, do not serve to finance the evil of private
prejudice."); Norwood v. Harrison, 413 U.S. 455, 463 (1973) ("That
the Constitution may compel toleration of private discrimination
in some circumstances does not mean that it requires state support
for such discrimination.").
The Religious Nondiscrimination Rule thus plainly serves
legitimate government ends. And St. Dominic does not contest that
- 89 -the Religious Nondiscrimination Rule -- which withholds public
funding from, or subjects to liability, those who discriminate
based on religion -- rationally relates to those ends.
4. The Sexual Orientation and Gender Identity Nondiscrimination
Rule
We come now to the Sexual Orientation and Gender Identity
Nondiscrimination Rule, which prohibits any in-state primary or
secondary school receiving public funding from discriminating
against students and applicants on the basis of sexual orientation
or gender identity. Me. Stat. tit. 5, § 4602(1).46 We start by
addressing the Commissioners' threshold ripeness and Pullman
arguments as applied to the Sexual Orientation and Gender Identity
Nondiscrimination Rule. We then turn to the merits, concluding
first that the Sexual Orientation and Gender Identity
Nondiscrimination Rule does not trigger heightened scrutiny and
second that the rule survives rational basis review. Thus,
St. Dominic's challenge to the Sexual Orientation and Gender
Identity Nondiscrimination Rule fails.
a. Justiciability
Before reaching the merits, we address justiciability.
As with the Religious Expression Rule and the Religious
46 The rule provides a specific carveout for religious
schools that do not receive public funding, Me. Stat. tit. 5,
§ 4602(5)(C), but, given that the MHRA's education provisions do
not apply to schools that do not receive public funding anyway,
id. § 4553(2-A), this carveout is largely superfluous.
- 90 -Nondiscrimination Rule, the Commissioners urge us to avoid the
merits of this dispute on ripeness and Pullman grounds.
St. Dominic, relying on a 2016 memorandum authored by
Commission Counsel for the MHRC, points to two potential
applications of this rule that allegedly violate the school's
constitutional rights. See Memorandum from Barbara Archer Hirsch,
Comm'n Couns., Me. Hum. Rts. Comm'n, to Amy Sneirson, Exec. Dir.,
Me. Hum. Rts. Comm'n, 3–4 (Jan. 13, 2016),
https://www.maine.gov/mhrc/sites/maine.gov.mhrc/files/inlinefiles/20160113_g.pdf [https://perma.cc/594V-BCS7] [hereinafter
"2016 MHRC Memorandum"]. First, St. Dominic says, the rule would
require the school to "facilitate a student's gender transition
over the objection of their parents," by using the student's
preferred pronouns and name and allowing the student to dress in
clothing consistent with their gender identity.47 Second,
according to St. Dominic, the rule would mandate that the school
"discipline other students and staff who object to using a
student's preferred pronouns." We refer to these two applications,
collectively, as the Sexual Orientation and Gender Identity
Nondiscrimination Rule's "Gender Presentation Policy."
St. Dominic does not inquire about a student's sexual orientation
47Although St. Dominic uses the expansive term "facilitate"
in describing this requirement, the relevant portion of the 2016
MHRC Memorandum addresses only a student's chosen name, preferred
pronouns, and dress. 2016 MHRC Memorandum, supra, at 3–4.
- 91 -or gender identity in admissions or allege any other practice in
which it intends to engage that might be construed as
discrimination on those grounds, so we focus only on the Gender
Presentation Policy in our analysis.48
48 In its reply brief, St. Dominic refers in passing to a
supposed admission by the Commissioners that the Sexual
Orientation and Gender Identity Nondiscrimination Rule would
require publicly funded schools to "[a]ccept an enrolled student's
assertion of their gender identity, including when the student
sincerely holds a 'fluid' gender identity that shifts with changing
athletic seasons," and "[a]llow students to use 'toilet, locker
room, and shower facilities' that correspond to their asserted
gender identity, regardless of whether other students or staff
object because of their own religious beliefs (for example about
modesty)." St. Dominic does not clarify whether any school
policies would violate these alleged requirements. In any event,
St. Dominic did not mention these requirements below or raise them
in its opening brief. We therefore deem any arguments relating to
these requirements waived. See Álamo-Hornedo v. Puig, 745 F.3d
578, 582 (1st Cir. 2014) ("[I]n the absence of exceptional
circumstances, arguments presented for the first time in an
appellant's reply brief are deemed waived."); see also United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived.").
St. Dominic's reply brief also attempts to introduce as
evidence a 2022 draft rulemaking that interprets the Sexual
Orientation and Gender Identity Nondiscrimination Rule as
requiring schools to treat all sexual orientations and gender
identities "as equally valid" in any "[h]uman sexuality courses."
But even if we assume that St. Dominic properly introduces this
evidence and that it bears relevance to St. Dominic's claims, this
draft rulemaking is just that: a draft. St. Dominic adduces no
evidence indicating that the State intends to finalize the
proposal, the Commissioners' briefing indicates that the MHRC does
not plan to enforce the Sexual Orientation and Gender Identity
Nondiscrimination Rule in such a way, and the rule's plain text
does not suggest that it contains such a requirement.
- 92 -i. Ripeness
We find St. Dominic's claims against the Sexual
Orientation and Gender Identity Nondiscrimination Rule ripe but
only to the extent those claims challenge the Gender Presentation
Policy. As we have stated, ripeness in this pre-enforcement
context requires St. Dominic to show that it has "concrete plans
to engage immediately (or nearly so) in an arguably proscribed
activity," and that "the challenged statute, fairly read, thwarts
implementation of the plan." Whitehouse, 199 F.3d at 33.
Here, St. Dominic alleges that it would refuse to comply
with "a student's efforts to change his or her gender identity"
without the consent of that student's parents and would not
discipline other students or faculty who refused to use pronouns
consistent with that student's gender identity. Although the
Commissioners contend it is not clear that this would violate the
Sexual Orientation and Gender Identity Nondiscrimination Rule, it
is at least "arguably proscribed" by the rule. After all, the
2016 MHRC Memorandum establishing the Gender Presentation Policy
shows that the MHRC believes the rule would prohibit St. Dominic's
conduct. And, during the pendency of this appeal, the MHRC filed
a complaint against five public school districts for violations of
the Sexual Orientation and Gender Identity Nondiscrimination Rule
in athletics and private spaces, in which it cited the same 2016
MHRC Memorandum, albeit a different section. Complaint ¶ 16, Me.
- 93 -Hum. Rts. Comm'n v. Me. Sch. Admin. Dist. 70, No. 25-188 (Me.
Super. Ct. Kennebec Cnty. Nov. 17, 2025).49 This recent
enforcement activity supports the idea that St. Dominic faces a
credible threat of prosecution for that arguably proscribed
activity. We therefore conclude that St. Dominic's challenge to
the Sexual Orientation and Gender Identity Nondiscrimination Rule
is ripe to the extent that it targets the Gender Presentation
Policy.
Before proceeding, though, we note the limited scope of
this conclusion. We address here only those applications of the
Sexual Orientation and Gender Identity Nondiscrimination Rule
actually challenged by St. Dominic: the Gender Presentation
Policy's requirement that a school receiving public funding use a
transgender student's preferred name and pronouns, encourage staff
and students to do the same, and allow the student to dress in
accord with their gender identity. It strikes us that other
applications of the rule are hopelessly uncertain at this time.
We are aware of only one case construing the MHRA's bar on
gender-identity discrimination in education, and in that case, the
49 The alleged violations in that complaint concern the
restriction of athletic opportunities and private spaces by
biological sex. See generally Complaint, Me. Sch. Admin. Dist. 70,
No. 25-188. We are not here called to address the constitutional
implications of the rule's possible application to such practices,
other than to acknowledge that the complaint lends credence to
St. Dominic's contention that the MHRC continues to read the rule
in accord with the 2016 MHRC Memorandum.
- 94 -Maine Supreme Judicial Court stressed the fact-sensitive nature of
"[d]ecisions about how to address students' legitimate gender
identity issues" under the MHRA. Doe v. Reg'l Sch. Unit 26, 86
A.3d 600, 606–07 (Me. 2014) (finding MHRA violation where school
barred transgender student who identified as girl from using girls'
bathroom, contrary to plan "carefully developed over several
years" and "designed to sensitively address [her] gender identity
issues" in light of fact that "[t]he school, her parents, her
counselors, and her friends all accepted that [she] is a girl").
We therefore express no opinion regarding the constitutionality of
applications of the Sexual Orientation and Gender Identity
Nondiscrimination Rule not before us.
ii. Pullman Abstention
As to St. Dominic's challenge to the MHRC's Gender
Presentation Policy, Pullman abstention is not appropriate because
no "substantial uncertainty exists over the meaning of" that policy
specifically. Batterman, 544 F.3d at 373. Although other
applications of the Sexual Orientation and Gender Identity
Nondiscrimination Rule are uncertain at this time, we have in the
Gender Presentation Policy a specific interpretation promulgated
by the body tasked with administering the MHRA and issuing
regulations thereunder. Me. Stat. tit. 5, § 4566(7). That
interpretation would require St. Dominic, if it accepted tuition
assistance, to use a transgender student's chosen name and pronouns
- 95 -and mandate that employees and other students do the same. In
response to St. Dominic's concerns about those requirements, the
Commissioners argue that "a state court might not agree with" the
2016 MHRC Memorandum that lays out the Gender Presentation Policy.
But the fact that a state court "might" not read the Sexual
Orientation and Gender Identity Nondiscrimination Rule as
expansively as does the MHRC does not create the "substantial
uncertainty" required for Pullman abstention. See Midkiff, 467
U.S. at 237 ("[T]he relevant inquiry is not whether there is a
bare, though unlikely, possibility that state courts might render
adjudication of the federal question unnecessary."). Without any
material ambiguity regarding the Gender Presentation Policy, we do
not believe abstention is appropriate in this case, where First
Amendment rights are at stake. See Mangual v. Rotger-Sabat, 317
F.3d 45, 64 (1st Cir. 2003) ("[T]he delay involved in abstention
is especially problematic where First Amendment rights are
involved.").
b. Level of Scrutiny
Moving to the merits, St. Dominic makes only three
arguments with respect to the Sexual Orientation and Gender
Identity Nondiscrimination Rule specifically: (1) that the rule
triggers strict scrutiny under Smith, (2) that the rule violates
St. Dominic's church-autonomy rights, and (3) that the rule
implicates parental rights under the Free Exercise Clause.
- 96 -St. Dominic did not argue in the district court that the Sexual
Orientation and Gender Identity Nondiscrimination Rule interferes
with the school's free-speech or expressive-association rights in
any way, nor has it attempted to do so on appeal. Any such argument
is therefore waived. United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990). As we will explain, none of the arguments
St. Dominic does present persuade us that heightened scrutiny
should govern application of the Sexual Orientation and Gender
Identity Nondiscrimination Rule's Gender Presentation Policy to
St. Dominic should it decide to participate in the
tuition-assistance program.
i. Free Exercise
St. Dominic primarily contends that the Sexual
Orientation and Gender Identity Nondiscrimination Rule should
receive heightened scrutiny under the Free Exercise Clause.
We do not understand St. Dominic to contend that the
rule triggers strict scrutiny under Carson's interpretation of the
Free Exercise Clause on the ground that it "disqualif[ies] some
private schools" from the tuition-assistance program "solely
because they are religious." Carson, 596 U.S. at 780 (quoting
Espinoza, 591 U.S. at 487). Even if St. Dominic did mean to raise
that argument, we are unpersuaded. As mentioned, the MHRC is
currently pursuing an action against several secular schools for
conduct that the MHRC asserts violates the rule. Complaint, Me.
- 97 -Sch. Admin. Dist. 70, No. 25-188. And the record does not suggest
that religious schools, by their nature, engage in
sexual-orientation or gender-identity discrimination. See Polk,
166 F.4th at 415 ("[B]ecause Polk herself is a Christian who
believes that there are only two sexes does not mean that all
Christians believe the same thing, and that non-Christians
inherently believe otherwise."). Simply put, barring sexual
orientation and gender identity discrimination does not exclude
religious schools from the tuition-assistance program solely based
on their religious character. See St. Mary, 154 F.4th at 763–65
(finding similar nondiscrimination rule as applied to Catholic
preschools did not trigger strict scrutiny under Carson).
St. Dominic does separately argue that the Sexual Orientation and
Gender Identity Nondiscrimination Rule raises entanglement
concerns under Carson, which we address below. See infra
Section III.A.4.b.ii.
Proceeding thus under Smith's "neutral and generally
applicable" framework, we begin with general applicability. In so
doing, we see no reason to depart from our conclusion, with respect
to the Religious Nondiscrimination Rule, that the MHRA's education
provisions are generally applicable. See supra
Section III.A.3.b.ii(2). Nor does St. Dominic present any unique
case for why the Sexual Orientation and Gender Identity
- 98 -Nondiscrimination Rule specifically falters on this prong of the
Smith test.
That leaves only neutrality. St. Dominic makes no
argument that either the Sexual Orientation and Gender Identity
Nondiscrimination Rule as whole or the Gender Presentation Policy
in particular is facially nonneutral. Rather, as to this rule,
St. Dominic's neutrality challenge rests entirely on nonfacial
nonneutrality. Nonfacial nonneutrality, as we have noted, refers
to "governmental hostility [that] is masked." Lukumi, 508 U.S. at
534. But St. Dominic cannot argue that the Maine legislature
enacted the Sexual Orientation and Gender Identity
Nondiscrimination Rule itself -- or that the MHRC instituted the
Gender Presentation Policy -- out of hostility to religious
schools. After all, the bar on sexual-orientation and
gender-identity discrimination was added to the MHRA in 2005, when
the nonsecular requirement generally excluded religious schools
from the MHRA's coverage. The same holds true for the Gender
Presentation policy, which was established in 2016, two years
before the Carson litigation began. Instead, St. Dominic's
arguments center on recent amendments to the Sexual Orientation
and Gender Identity Nondiscrimination Rule. The bulk of these
arguments -- regarding the Frey and Fecteau Statements and the
single-sex exemption -- fail here for the same reasons they failed
- 99 -with regard to the Religious Nondiscrimination Rule. See supra
Section III.A.3.b.ii(1).
St. Dominic's one remaining argument narrows in on the
2021 Amendments' impact on the Sexual Orientation and Gender
Identity Nondiscrimination Rule's carveout for religious schools.
Previously, the rule exempted all religious schools, but with the
amendments, the rule now exempts only those religious schools that
do not receive public funding. 2021 Amendments sec. 19 (codified
at Me. Stat. tit. 5, § 4602(5)(C)). St. Dominic argues that this
change was born of hostility to religious schools.
For two reasons, we find no such hostility here. First,
this amendment simply aligned the MHRA's education provisions with
its employment and housing provisions, which already limited their
religious exemptions from similar prohibitions on
sexual-orientation and gender-identity discrimination to entities
that did not receive public funding. Me. Stat. tit. 5,
§ 4553(10)(G) (2018). Second, the pre-amendment exemption was
essentially meaningless since the MHRA only applies to a religious
school if it receives public funding and, prior to Carson, no
religious school could receive public funds for tuition. Me. Stat.
tit. 20-A, § 2951(2) (2018).50 Thus, before the 2021 Amendments,
St. Dominic argues that this is not precisely accurate.
50
The nonsectarian requirement challenged in Carson did not bar all
religious schools from the tuition-assistance program, only those
that were "associated with a particular faith or belief system"
- 100 -the Sexual Orientation and Gender Identity Nondiscrimination Rule
applied to all Maine K–12 schools that received public funding.
The legislature's decision to ensure that, post-Carson, the Sexual
Orientation and Gender Identity Nondiscrimination Rule continued
to apply to all Maine K–12 schools that receive public funding
evinces no hostility toward religious schools as such.
Because the Sexual Orientation and Gender Identity
Nondiscrimination Rule is both neutral and generally applicable,
the rule's application to St. Dominic, should it accept tuition
assistance, does not warrant heightened scrutiny under the Free
Exercise Clause.
ii. Church Autonomy and Religious Entanglement
St. Dominic applies its church-autonomy and
religious-entanglement argument to the Sexual Orientation and
Gender Identity Nondiscrimination Rule's Gender Presentation
Policy, too. See supra Section III.A.3.b.iii. In its view, the
policy would allow the MHRC to "dictate what students may wear and
and "promote[d] [that] faith or belief system . . . and/or
present[ed] the material taught through the lens of this faith."
Carson, 596 U.S. at 775 (citation modified). However, the
pre-amendment religious exemption also did not exempt all
religious schools, only those that were "owned, controlled or
operated by a bona fide religious corporation, association or
society," Me. Stat. tit. 5, § 4602(4) (2018). While St. Dominic
identifies at least one nonsectarian religious school that
participated in the program prior to Carson, it has not shown that
that school qualified for the pre-amendment exemption. On this
record, then, we see no room between the nonsectarian requirement
and the pre-amendment exemption.
- 101 -be called at school, whether parents' wishes will be honored, and
when and whether students and staff must be disciplined for failing
to follow the Commission's guidance about these matters."51 Of
course, the text of the Sexual Orientation and Gender Identity
Nondiscrimination Rule itself contains no such language. Rather,
the rule simply prohibits a school from discriminating on the basis
of a student's sexual orientation or gender identity if the school
accepts public funding. Even the Gender Presentation Policy does
not give the MHRC power to dictate students' names and dress;
rather, it gives students that power, instructing schools to honor
the requests of individual students regarding their own names,
pronouns, and dress. And, as with the Religious Nondiscrimination
Rule, enforcement of this policy would not require the MHRC or
courts to inquire into the religious motivations for allegedly
discriminatory practices or decide matters of church doctrine.
Thus, for substantially the same reasons that this argument falters
as to the Religious Nondiscrimination Rule, we do not see either
the church-autonomy doctrine or St. Dominic's conception of a
religious-entanglement doctrine as providing an independent basis
to apply strict scrutiny.
51 St. Dominic does not contend that such discipline for
staff might include termination or otherwise implicate the
ministerial exception under Hosanna-Tabor, 565 U.S. at 188.
- 102 -iii. Parental Rights
Finally, in two notices of supplemental authority,
St. Dominic asks us to reverse based on the Supreme Court's recent
decisions in Mahmoud v. Taylor, 606 U.S. 522 (2025), and Mirabelli
v. Bonta, 607 U.S. 492 (2026). Both decisions reaffirmed "the
rights of parents to direct the religious upbringing of their
children." Mahmoud, 606 U.S. at 547 (citation modified); see also
Mirabelli, 607 U.S. at 496–97. But neither case concerned schools'
rights. As such, these cases do not provide reason for us to find
a violation of St. Dominic's rights.52
We focus our attention on Mirabelli, the more recent and
apposite of the two cases. There, several teachers and parents
challenged, on grounds including a free-exercise claim, California
policies that barred schools "from telling [parents] about their
children's efforts to engage in gender transitioning at school
unless the children consent[ed] to parental notification" and
required schools to "use children's preferred names and pronouns
regardless of their parents' wishes." Mirabelli, 607 U.S. at 493.
After the Ninth Circuit stayed the district court's permanent
52 St. Dominic does not clearly confine its parental-rights
argument to its challenge to the Sexual Orientation and Gender
Identity Nondiscrimination Rule. Because Mahmoud and Mirabelli
both address sexual-orientation and gender-identity policies, we
tackle the issue here. Nevertheless, our conclusion applies
equally to St. Dominic's challenges to the MHRA's other education
provisions.
- 103 -injunction against the policies, the Supreme Court vacated the
stay with respect to the parent-plaintiffs. Id. at 498. As
relevant here, the Court explained that the parents held "sincere
religious beliefs about sex and gender," and "California's
policies violate[d] those beliefs," imposing an impermissible
"burden on religious exercise." Id. at 496 (quoting Mahmoud, 606
U.S. at 550). On this ground, the Court found it likely that the
policies "substantially interfere[d] with the 'right of parents to
guide the religious development of their children.'" Id. (quoting
Mahmoud, 606 U.S. at 559); see also Mahmoud, 606 U.S. at 545–46
(finding likely violation of parental rights in school board policy
requiring use of LGBTQ+-inclusive storybooks in elementary school
classrooms with no notice or opt-out for parents who objected on
religious grounds).
St. Dominic correctly points out that this case
parallels Mirabelli to an extent. As with the policies in
Mirabelli, the Sexual Orientation and Gender Identity
Nondiscrimination Rule's Gender Presentation Policy would require
subject schools to use a transgender student's preferred name and
pronouns over a parent's objection -- though nothing before us
suggests the rule would bar a school from informing parents of
their child's gender transitioning. However, no party remaining
in this suit is a parent asserting a parental-rights claim, and
the Mirabelli Court did not indicate that a party other than a
- 104 -parent could generally assert such a claim. In fact, the Court
declined to vacate the stay as to the teacher-plaintiffs,
suggesting that, even if the policies violated the parents' rights,
they might not violate the teachers' rights. Mirabelli, 607 U.S.
498; see also Mahmoud, 606 U.S. at 540–42 (addressing claims of
parents and an unincorporated association of parents and
teachers); cf. Pierce v. Soc'y of Sisters, 268 U.S. 510, 534–36
(1925) (finding private religious school deprived of property
without due process by compulsory public-education law because law
unconstitutionally interfered with parental right to direct the
education of children); Runyon, 427 U.S. at 175 n.13, 176–77
(allowing private school to argue civil rights statute violated "a
parent's right to direct the education of his children," grounded
in substantive due process, but finding no such violation).
It is "a fundamental restriction on our authority that
in the ordinary course, a litigant must assert his or her own legal
rights and interest, and cannot rest a claim to relief on the legal
rights or interests of third parties." Hollingsworth v. Perry,
570 U.S. 693, 708 (2013) (citation modified). This general
principle does admit of a "limited" exception, but that exception
requires the party asserting rights on behalf of another to justify
its third-party standing. Kowalski v. Tesmer, 543 U.S. 125, 130
(2004). Here, St. Dominic has put forth no reason why it should
be allowed to litigate on behalf of the Radonises or any other
- 105 -parents not party to this suit. Because, "[i]n our adversarial
system of adjudication, . . . [t]he parties frame the issues for
decision, while the court serves as neutral arbiter of matters the
parties present," Clark v. Sweeney, 607 U.S. 7, 9 (2025) (citation
modified), we need proceed no further down the path of parental
rights. We thus set Mahmoud and Mirabelli aside for the limited
purpose of determining St. Dominic's own entitlement to relief.
c. Rational Basis Review
As St. Dominic has not demonstrated that strict scrutiny
should apply,53 we employ rational basis review of the Sexual
Orientation and Gender Identity Nondiscrimination Rule and its
Gender Presentation Policy. Just as combatting religious
discrimination qualifies as a legitimate governmental pursuit, so
too combatting sexual-orientation and gender-identity
discrimination rises to the level. Telescope Media Grp. v. Lucero,
936 F.3d 740, 777 (8th Cir. 2019) (Kelly, J., concurring in part
and dissenting in part) ("If eradicating discrimination based on
race or sex is a compelling state interest, then so is [a state's]
53To the extent St. Dominic also argues for strict scrutiny
of the Sexual Orientation and Gender Identity Nondiscrimination
Rule under the unconstitutional-conditions doctrine, that argument
fails for the same reason it failed with respect to the Religious
Nondiscrimination Rule: St. Dominic has not shown that the Sexual
Orientation and Gender Identity Nondiscrimination Rule would
unconstitutionally infringe its free-exercise rights if the rule
were a direct restriction, so the rule is not unconstitutional as
a funding condition. FAIR, 547 U.S. at 59–60.
- 106 -interest in eradicating discrimination based on sexual
orientation."). And the imposition of liability for
sexual-orientation or gender-identity discrimination on those
schools that accept public funding rationally relates to those
antidiscrimination goals, as does the requirement that such
schools respect students' expression of their gender identity. We
thus find that St. Dominic has not demonstrated a likelihood of
success on the merits of its limited challenge to the Sexual
Orientation and Gender Identity Nondiscrimination Rule.
B. Remaining Factors
With our likelihood-of-success-on-the-merits discussion
complete, we turn to the other three preliminary injunction
factors. Beginning with St. Dominic's challenges to the
Employment Rule, the Religious Nondiscrimination Rule, and the
Sexual Orientation and Gender Identity Nondiscrimination Rule, we
note that St. Dominic "does not argue on appeal that the other
three factors mandate an injunction even if its claims are not
likely to succeed on the merits," so we "rest [our] affirmance[s]
solely on [our] unlikelihood-of-success holding[s]." Becky's
Broncos, LLC v. Town of Nantucket, 138 F.4th 73, 78 (1st Cir. 2025)
(citation modified).
As to the Religious Expression Rule, St. Dominic has
satisfied the other three factors. "The loss of First Amendment
freedoms, for even minimal periods of time, unquestionably
- 107 -constitutes irreparable injury." Roman Cath. Diocese, 592 U.S. at
19 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality
opinion)). And the balance of equities and public interest also
favor St. Dominic -- after all, the Commissioners can hardly
justify a religiously discriminatory provision on the ground that
the provision is necessary to combat religious discrimination.
IV. Conclusion
For the foregoing reasons, we affirm in part and reverse
in part the district court's order denying St. Dominic's motion
for a preliminary injunction. Specifically, we affirm the order
insofar as it determined that no case or controversy exists with
respect to the Employment Rule and that St. Dominic has not shown
a likelihood of succeeding on the merits of its claims against the
Religious Nondiscrimination Rule and the Sexual Orientation and
Gender Identity Nondiscrimination Rule. And we reverse the order
insofar as it determined that St. Dominic has not demonstrated its
entitlement to a preliminary injunction against the Religious
Expression Rule. We thus remand the case for further proceedings
consistent with this opinion, including the timely entry of a
preliminary injunction against the Religious Expression Rule as
applied to St. Dominic. No costs are allocated.
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