Crosspoint v. Makin

It is a foundational principle in civil rights law that the government may require compliance with antidiscrimination provisions in its distribution of public funds. While a private religious school may have sincerely held beliefs that motivate its discrimination, the state need not subsidize and support discriminatory conduct. Indeed, states have long used the power of the purse to protect the right to equal access to education, employment, housing, and public accommodations.

Maine law provides that all students be afforded a free public education. In districts where no public school exists, Maine will pay the tuition for students to attend approved private schools. To be eligible for the tuition program, schools must comply with the Maine Human Right Act’s antidiscrimination provisions, which prohibit discrimination on the basis of religion, sexual orientation, and gender identity, among other protected characteristics.

Crosspoint seeks to participate in Maine’s school tuition program, but requests an exemption from the antidiscrimination requirements so that it can discriminate in admissions on the basis of a student’s religion, sexual orientation, or gender identity. Crosspoint filed a lawsuit asserting that requiring compliance with the antidiscrimination provisions violates its free exercise and free speech rights. The district court denied Crosspoint’s motion for a preliminary injunction, finding that Maine’s anti-discrimination law is neutral and generally applicable and regulates Crosspoint’s conduct, not speech. Crosspoint appealed.

Our amicus brief argues that neither the Free Exercise Clause nor the Free Speech Clause prevents Maine from holding Crosspoint to the same antidiscrimination requirements as all other schools in Maine receiving public funding.