Free Exercise Limits on “Religious Expression Parity” in Publicly Funded Private Schools: Crosspoint Church v. Makin

Court: U.S. Court of Appeals for the First Circuit  |  Date: July 2, 2026

1. Introduction

Crosspoint Church v. Makin is a First Circuit decision addressing whether Maine may apply portions of the Maine Human Rights Act (“MHRA”) to a religious K–12 school that wishes to participate in Maine’s public tuition-assistance program. Crosspoint Church operates Bangor Christian School (“BCS”), a private K–12 school that conditions student conduct and student presentation (including sexual conduct, gender identity, and dress) on the school’s Statement of Faith.

Crosspoint sought to enjoin four MHRA “rules” as unconstitutional under the First Amendment:

  • Employment Rule (MHRA employment nondiscrimination with religious carveouts);
  • Religious Expression Rule (if religious expression is permitted, the school may not discriminate “between religions”);
  • Religious Nondiscrimination Rule (no discrimination in covered school programs “on the basis of religion”);
  • Sexual Orientation and Gender Identity Nondiscrimination Rule (no discrimination “on the basis of sexual orientation or gender identity,” with an exemption for religious schools that do not receive public funding).

The core issues were (i) justiciability for the Employment Rule, (ii) whether the Religious Expression Rule violates free exercise, (iii) whether the Religious and SOGI nondiscrimination rules are unconstitutional as applied to BCS’s admissions/discipline policies, and (iv) whether the SOGI nondiscrimination rule is a content- or viewpoint-based speech restriction.

Relationship to companion decision: The opinion “follows on the heels” of St. Dominic Academy v. Makin, No. 24-1739 (1st Cir. July 2, 2026). The panel treated St. Dominic as controlling on overlapping issues and asked whether any differences required a different result. It found none.

2. Summary of the Opinion

Holdings (what Crosspoint won)

  • Religious Expression Rule: Unconstitutionally violates Crosspoint’s free-exercise rights; case remanded for entry of a permanent injunction as applied to Crosspoint.

Holdings (what Maine won)

  • Employment Rule: No Article III “case or controversy” because existing statutory carveouts already provide the relief Crosspoint claims to seek.
  • Religious Nondiscrimination Rule: Upheld as applied; does not unconstitutionally burden BCS’s mission-oriented policies.
  • SOGI Nondiscrimination Rule: Upheld as applied; treated as regulating discriminatory conduct rather than speech; survives rational basis review.
  • Targeting/animus challenge to 2021 Amendments: Rejected for lack of evidence of nonneutral targeting of BCS.

Procedurally, although Crosspoint appealed from the denial of a permanent injunction (after stipulating to final judgment), the court held that posture did not alter the result given Crosspoint’s stipulation that it had no new facts and reserved no argument for relief beyond what would have been available under the preliminary-injunction record.

3. Analysis

3.1. Precedents Cited

The opinion is best read as an application (and partial extension) of the legal architecture set out in St. Dominic Academy v. Makin, combined with established Free Exercise and Free Speech doctrine:

  • St. Dominic Academy v. Makin, No. 24-1739 (1st Cir. July 2, 2026)
    The court treated St. Dominic as the principal guide for the MHRA/tuition-assistance “intersection,” adopting its conclusions on: (i) no justiciable controversy for the Employment Rule, (ii) unconstitutionality of the Religious Expression Rule under free exercise, and (iii) constitutionality of the Religious and SOGI nondiscrimination rules in this funding context.
  • Caroline T. v. Hudson Sch. Dist., 915 F.2d 752 (1st Cir. 1990)
    Used for the remedial/standard-of-proof distinction between preliminary and permanent injunctions: permanent relief requires “actual success” rather than “likelihood of success.” The court emphasized the distinction was functionally irrelevant here because Crosspoint stipulated to final judgment on the same record.
  • Carson v. Makin, 596 U.S. 767 (2022)
    Provided crucial context: BCS was a focal school in the precursor litigation, and Crosspoint argued the MHRA’s 2021 amendments were designed to “moot” or “preemptively exclude” BCS post-Carson. The court assumed Maine acted partly in response to the litigation but refused to infer hostility or targeted suppression of religion.
  • Employment Division v. Smith, 494 U.S. 872 (1990) and Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)
    Crosspoint’s “targeting” claim was framed as a Smith neutrality problem: under Lukumi, a law burdening religion that is not neutral triggers “the most rigorous of scrutiny.” The court found Crosspoint’s evidence inadequate to show the 2021 Amendments were enacted “because of” religious suppression.
  • Fulton v. City of Philadelphia, 593 U.S. 522 (2021) and Masterpiece Cakeshop v. Colo. C.R. Comm'n, 584 U.S. 617 (2018)
    Cited for the proposition that government fails neutrality by acting with intolerance toward religious beliefs or presupposing their illegitimacy. The court held the post-enactment statements offered by Crosspoint did not establish such hostility in the legislative act itself.
  • United States v. O'Brien, 391 U.S. 367 (1968)
    Invoked to caution against judicial speculation about legislative motive based on isolated remarks: “What motivates one legislator…” is not what motivates all. The court relied on this principle to discount reliance on a single tweet by the House Speaker.
  • Free Speech Coal., Inc. v. Paxton, 606 U.S. 461 (2025) and Reed v. Town of Gilbert, 576 U.S. 155 (2015)
    Stated the general rule: content-based speech restrictions are presumptively unconstitutional and must satisfy strict scrutiny.
  • Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995)
    Used to define viewpoint discrimination as an especially blatant subset of content discrimination.
  • R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) and Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Bos., 515 U.S. 557 (1995)
    Central to the conduct-versus-speech analysis: the court emphasized antidiscrimination statutes are typically “directed not against speech but against conduct,” and Hurley was distinguished as involving compelled inclusion of a message in an expressive parade.
  • 303 Creative LLC v. Elenis, 600 U.S. 570 (2023)
    Distinguished as a compelled-speech case about forced creation of a specific message (wedding websites). The court underscored 303 Creative’s disclaimer of a general “right to refuse to serve members of a protected class.”
  • Am. All. for Equal Rts. v. Fearless Fund Mgmt., LLC, 103 F.4th 765 (11th Cir. 2024)
    Cited to reinforce the “critical distinction” between advocating discrimination and practicing it.
  • Christian Legal Soc'y Chapter of the Univ. of Cal., Hastings Coll. of the L. v. Martinez, 561 U.S. 661 (2010) and United States v. Concepcion-Guliam, 62 F.4th 26 (1st Cir. 2023)
    Used to bracket the doctrinal field: Crosspoint expressly waived expressive-association claims on appeal, so the court confined the analysis to free-speech doctrine and treated the association argument as waived.
  • Alexander v. Sandoval, 532 U.S. 275 (2001) (Stevens, J., dissenting) and Thompson v. Thompson, 484 U.S. 174 (1988)
    Appeared in a footnote rejecting reliance on a post-enactment Attorney General press release as “context” for a prior-year legislative act.

3.2. Legal Reasoning

A. Procedural posture: permanent vs preliminary injunction

Crosspoint’s appeal arose from a stipulated conversion of a preliminary-injunction denial into a permanent-injunction denial, followed by final judgment. Applying Caroline T. v. Hudson Sch. Dist., the court recognized the doctrinal difference (actual success vs likelihood of success), but held it immaterial: Crosspoint offered no new evidence, sought no further hearing, and preserved no theory that would yield permanent relief absent preliminary entitlement.

B. Employment Rule: no case or controversy

Relying on its analysis in St. Dominic Academy v. Makin, the court held Crosspoint’s Employment Rule challenge was nonjusticiable. The MHRA’s employment provisions contain carveouts allowing religious organizations to prefer co-religionists and require conformity to religious tenets. Because those carveouts already supply the relief Crosspoint said it needed for its co-religionist staffing and conduct standards, there was no live dispute.

C. Religious Expression Rule: Free Exercise violation (injunction ordered as applied)

The panel followed St. Dominic and held the Religious Expression Rule violates Crosspoint’s free-exercise rights. The constitutional problem, as framed by the companion case adopted here, is that the rule conditions a religious school’s management of religious expression on equal treatment “between religions” in a way that burdens a school’s ability to maintain and transmit its own faith commitments in a publicly funded educational setting. The remedy is targeted: the court ordered a remand for entry of a permanent injunction against this rule as applied to Crosspoint.

D. Religious Nondiscrimination Rule: constitutional as applied to BCS

The court treated BCS’s “spiritual fit” and “support our philosophy” screening as materially similar to St. Dominic’s mission-oriented admissions practices and concluded the Religious Nondiscrimination Rule does not, on the court’s understanding, prohibit those practices as such. It added a constraint on enforcement: the MHRC may not apply the Religious Nondiscrimination Rule to “recreate” the enjoined Religious Expression Rule in practice (i.e., it cannot indirectly achieve what it cannot do directly).

For policies that do reflect some religion-based preference (e.g., “church member discounts”), the court adopted St. Dominic’s reasoning that applying a religion nondiscrimination condition to publicly funded participation does not, on these facts, amount to a First Amendment violation.

E. SOGI Nondiscrimination Rule: two distinct constitutional attacks rejected

1) Free Exercise targeting claim based on 2021 Amendments

Crosspoint argued the MHRA’s 2021 Amendments (adding “religion” to educational nondiscrimination and narrowing the SOGI religious-school exemption to exclude publicly funded schools) were enacted with hostility toward BCS specifically, given BCS’s prominence in Carson v. Makin.

The court rejected the claim under the Smith neutrality framework, emphasizing:

  • Post-enactment statements (Attorney General press release, Speaker tweet, professor op-ed) were insufficient to show legislative hostility.
  • Institutional role mattered: the Attorney General and professor had “no roles” in adoption of the amendments.
  • Single-legislator evidence was weak: under United States v. O'Brien, courts avoid guesswork about collective motive based on one-off remarks.
  • Plausible non-hostile rationale: anticipating that Carson might compel inclusion of religious schools in funding, Maine could rationally align education with pre-existing housing/employment rules: religious entities receiving public funds must comply with antidiscrimination obligations.

In short, even assuming responsiveness to litigation, the court would not infer the more “sinister” intent required to establish nonneutral targeting under Lukumi.

2) Free Speech claim: content/viewpoint regulation and compelled affirmation

Crosspoint argued the SOGI Nondiscrimination Rule compelled speech by requiring BCS to “affirm” students’ sexual orientation or gender identity. The court rejected this framing as inconsistent with the statute’s text and with Supreme Court distinctions between regulating discriminatory conduct and compelling expression.

  • Facial focus on conduct: The rule “simply prohibits educational discrimination” on SOGI grounds; it does not, by its terms, compel specific words or viewpoints. Citing R.A.V. v. City of St. Paul and Hurley, the court treated antidiscrimination provisions as typically conduct-focused.
  • Speech remains free: The Commissioners conceded BCS is “free to impart whatever religious education it likes,” including teachings about marriage and sex/gender.
  • Hurley and 303 Creative distinguished: those cases involved compelled inclusion/creation of a specific message. Here, Crosspoint sought to exclude/expel students based on SOGI “irrespective of that student’s speech,” i.e., based on status, not an expressive message.
  • Standard of review: Because the court found no content- or viewpoint-based speech regulation, strict scrutiny did not apply; the rule received rational basis review, which the panel said it survives for the reasons given in St. Dominic.
Important limitation/caveat: The court noted a 2016 MHRC memorandum (discussed in St. Dominic) that interpreted the SOGI rule to require using a student’s preferred name/pronouns. Crosspoint did not raise that memorandum. The court therefore limited its holding to the “plain text” of the rule and left open a future challenge if enforcement is attempted under that memorandum.

3.3. Impact

  • Immediate doctrinal effect in the First Circuit: The decision cements (via St. Dominic) that Maine’s Religious Expression Rule is unconstitutional as applied to religious schools like BCS, requiring injunctive relief while leaving other MHRA conditions in place.
  • Funding-conditions architecture remains largely intact: Maine may generally condition participation in its tuition-assistance program on compliance with religion and SOGI nondiscrimination requirements, at least as applied to admissions/retention decisions based on protected status (as framed by the record here).
  • High bar for “targeting”/animus claims: Post-enactment commentary, non-enacting officials’ statements, and isolated legislator remarks are unlikely to establish nonneutrality under Smith/Lukumi without stronger evidence tied to the enacting body and the enactment moment.
  • Reinforcement of status-versus-message distinction in speech doctrine: The court read 303 Creative and Hurley narrowly, declining to recharacterize status-based exclusion as a content/viewpoint speech regulation simply because exclusion can be expressive.
  • Future litigation channel preserved: By expressly limiting the speech holding to the rule’s “plain text,” the opinion invites targeted future challenges if Maine seeks to enforce pronoun/name or similar compelled-speech requirements (e.g., via agency guidance) against religious schools.

4. Complex Concepts Simplified

  • “Case or controversy” (Article III standing/justiciability): Federal courts cannot decide abstract disputes. If a statute already contains exemptions that fully protect the plaintiff’s conduct, there may be no live conflict to adjudicate. That is why the Employment Rule claim was dismissed as nonjusticiable.
  • Preliminary vs permanent injunction: A preliminary injunction is temporary and requires showing a likelihood of success; a permanent injunction follows final judgment and requires actual success. Here, Crosspoint’s stipulation meant the same record and arguments controlled both.
  • Free Exercise “neutrality” under Smith and Lukumi: If a law targets religion or is nonneutral, strict scrutiny applies. Evidence must show the law was enacted “because of” hostility to religious practice, not merely that it burdens religious actors or was adopted amid controversy involving religious institutions.
  • Content-based and viewpoint-based speech restrictions: A content-based rule depends on what is said; a viewpoint-based rule depends on which side of a debate is expressed. Such rules typically trigger strict scrutiny. The court held the SOGI nondiscrimination rule is not such a rule because it targets discriminatory conduct, not speech content.
  • Status vs message discrimination (key to Hurley and 303 Creative): The Supreme Court’s compelled-speech cases often involve being forced to host or create a specific message. Here, Crosspoint’s asserted right was to exclude students based on who they are (SOGI), not what they are saying—so the court treated it as conduct regulation.
  • “As applied” injunction: The court did not erase the Religious Expression Rule for everyone. It ordered an injunction preventing the rule’s enforcement against Crosspoint (and, by implication, similarly situated parties in related cases).

5. Conclusion

Crosspoint Church v. Makin (in lockstep with St. Dominic Academy v. Makin) draws a sharp constitutional line within Maine’s effort to couple public tuition assistance with MHRA compliance. Maine may generally enforce religion and SOGI nondiscrimination conditions on publicly funded private-school participation, and the SOGI rule is not recast as a speech code merely because compliance has expressive consequences. But Maine may not enforce a “Religious Expression Rule” that burdens a religious school’s free exercise by conditioning permissible religious expression on equal treatment “between religions.” The opinion’s practical significance is twofold: it mandates targeted injunctive relief against the Religious Expression Rule while preserving most of the MHRA’s funding-condition framework, and it signals that future speech-compulsion disputes (e.g., pronoun/name mandates via agency guidance) must be litigated with precision on a developed record.