Oral arguments were heard Tuesday in the cases filed by two Maine Christian schools — St. Dominic Academy in Auburn and Crosspoint Church, which runs Bangor Christian School — against the state for allegedly violating their freedom of religion.

The controversy at the center of this case surrounds a 2021 amendment to the Maine Human Rights Act that did away with certain exemptions for religious schools that receive funding through the state’s longstanding Town Tuitioning program.

Town Tuitioning, first launched in 1873, allows students residing in districts without a public school to attend the public or private school of their family’s choosing. Under this program, sending towns are responsible for paying tuition costs directly to receiving schools.

In 2022, the United States Supreme Court ruled in the case of Carson v. Makin that Maine could not require schools to be “nonsectarian” in order to be eligible for funding through this program.

According to the Court, enforcement of this criteria represented a violation of the First Amendment’s Free Exercise Clause.

Immediately following the release of this decision, Maine Attorney General Aaron Frey (D) issued a statement doubling down on the State’s position that religious schools should be excluded from the Town Tuitioning program on account of their religious beliefs:

“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.

While parents have the right to send their children to such schools, it is disturbing that the Supreme Court found that parents also have the right to force the public to pay for an education that is fundamentally at odds with values we hold dear.”

Also in the statement, Attorney General Frey vowed to explore ways to avoid allowing religious schools to participate in the program going forward.

“I intend to explore with Governor Mills’ administration and members of the Legislature statutory amendments to address the Court’s decision and ensure that public money is not used to promote discrimination, intolerance, and bigotry,” he said.

The cases filed by both schools were initially heard in federal court where they were denied preliminary injunctions to temporarily halt enforcement of these amended rules while the legal battles continued to unfold.

Oral arguments for both schools’ appeals were heard by the First Circuit Court of Appeals on Tuesday.

Crosspoint Church attorney Tiffany Bates argued that withholding state funding in this manner represents a violation of the First Amendment.

“The state appears to believe that [Bangor Christian Schools] can separate its religious beliefs from its religious identity,” Bates said. “It cannot.”

St. Dominic’s Academy argued that requiring employees to use students’ preferred pronouns if they don’t align with their sex assigned at birth would be “untenable” due to the teachings of the Roman Catholic Church.

“Maine excluded religious schools from its school choice program for over 40 years, but the U.S. Supreme Court made it clear in Carson v. Makin that such religious discrimination is unconstitutional,” said Jeremy Dys, Senior Counsel for First Liberty Institute, the firm arguing on behalf of the schools in these cases. “Now, our clients would be punished with heavy fines if they hold to their religious beliefs.  We hope the court puts an end to Maine’s tactics, which are odious to our Constitution.”

Christopher Taub — Maine’s Deputy Attorney General who is representing the state in this case — argued Tuesday that “most people, most taxpayers, would not want their funds to be used for purposes of discrimination.”

The First Circuit Court of Appeals is expected to rule on these cases at some point in the coming months.