Religious-Expression Equal-Treatment Mandates in Public-Funded Private Schools Are Facially Nonneutral and Fail Strict Scrutiny

Case: St. Dominic Academy v. Makin (1st Cir. July 2, 2026)

1. Introduction

St. Dominic Academy v. Makin sits at the post-Carson collision point between (i) Maine’s tuition-assistance program for students in districts without public schools and (ii) the Maine Human Rights Act (“MHRA”), whose education nondiscrimination provisions apply to “any private school or educational program approved for tuition purposes.” St. Dominic Academy (a Catholic school) and the Roman Catholic Diocese of Portland sought declaratory and injunctive relief against Maine education and human-rights officials, arguing that several MHRA rules—triggered by accepting tuition-assistance funds—would force the school to abandon core religious policies or incur civil liability.

Four rules were challenged: the “Employment Rule,” the “Religious Expression Rule,” the “Religious Nondiscrimination Rule,” and the “Sexual Orientation and Gender Identity Nondiscrimination Rule.” The central practical issue was whether Maine may condition participation in a generally available tuition benefit on compliance with these nondiscrimination requirements, and which of those requirements survive constitutional scrutiny when applied to religious schools.

2. Summary of the Opinion

Procedurally, the court also addressed mootness: the Radonis parents’ injunctive parental-rights claim became moot on appeal; it was remanded for dismissal without prejudice.

3. Analysis

3.1 Precedents Cited (and Their Influence)

A. Preliminary-injunction framework

• Russomano v. Novo Nordisk Inc. and Esso Standard Oil Co. (P.R.) v. Monroig-Zayas supply the familiar four-factor test and burden allocation; Corp. Techs., Inc. v. Harnett is invoked for the primacy of “likelihood of success.” These cases matter because the court’s relief turns almost entirely on merits probability—only the Religious Expression Rule cleared that “bearing wall.”

B. Article III limits: standing, ripeness, and advisory opinions

• TransUnion LLC v. Ramirez anchors the standing requirements and the “no advisory opinions” principle; it supports the court’s insistence that St. Dominic show a concrete, imminent injury for each claim.
• N.H. Right to Life Pol. Action Comm. v. Gardner provides the First Amendment pre-enforcement standing/ripeness formulation (“arguably proscribed” plus “credible threat of prosecution”); the court uses it repeatedly to separate live controversies from speculative fears.
• Abbott Lab'ys v. Gardner and R.I. Ass'n of Realtors, Inc. v. Whitehouse supply the “fitness/hardship” ripeness test and are key to the court’s willingness to reach the Religious Expression Rule and the “Gender Presentation Policy” issue without requiring St. Dominic to first violate the law and risk damages.
• R.R. Comm'n of Tex. v. Pullman Co., Batterman v. Leahy, and Haw. Hous. Auth. v. Midkiff frame Pullman abstention. The First Circuit used these to reject abstention where statutory meaning was sufficiently clear (Religious Expression Rule) or where the agency had adopted a concrete interpretation (Gender Presentation Policy), and to emphasize the special caution against abstention when First Amendment rights are in play (reinforced by Mangual v. Rotger-Sabat).
• Blum v. Holder is pivotal to the Employment Rule and to limiting the Religious Nondiscrimination Rule dispute: the court gives “particular weight” to the government’s interpretation and disavowal of enforcement theories the statute does not support.

C. Free Exercise: benefit-access cases vs. Smith neutrality/general applicability

• Carson v. Makin, Espinoza v. Mont. Dep't of Revenue, and Trinity Lutheran Church of Columbia, Inc. v. Comer are treated as the “religious exclusion from public benefits” trilogy. Importantly, the court reads them narrowly: they forbid excluding schools “solely because they are religious,” but do not automatically invalidate neutral nondiscrimination conditions that apply to religious and secular schools alike.
• Employment Division v. Smith, Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, and Fulton v. City of Philadelphia provide the controlling test for neutral, generally applicable laws incidentally burdening religion. The court treated Smith as binding and repeatedly resisted arguments that would “sub silentio” nullify it.
• Tandon v. Newsom, Roman Catholic Diocese of Brooklyn v. Cuomo, and Kennedy v. Bremerton Sch. Dist. inform general-applicability comparator analysis; the court uses these to reject St. Dominic’s attempt to compare in-state K–12 schools to out-of-state schools and postsecondary institutions (lines drawn by geography and grade level, not religion).
• Masterpiece Cakeshop v. Colo. C.R. Comm'n is invoked for the “hostility to religion” concept; the court finds the cited post-enactment political statements insufficient to attribute impermissible animus to the legislature as a whole.
• St. Mary Cath. Par. in Littleton v. Roy and the Supreme Court’s certiorari grant in St. Mary Cath. Par. v. Roy are used as contemporaneous signals that Smith remains operative (and that even the Supreme Court declined, in that cert grant, to take up whether Smith should be overruled).

D. Church autonomy, expressive association, unconstitutional conditions

• Our Lady of Guadalupe Sch. v. Morrissey-Berru and Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C. are cited for church autonomy/ministerial exception. The First Circuit refuses to extend these doctrines to create a broad “religious admissions autonomy” rule on the thin briefing/record presented.
• Serbian E. Orthodox Diocese for U.S. & Can. v. Milivojevich, Jones v. Wolf, Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., and NLRB v. Cath. Bishop of Chi. frame non-entanglement principles; the court holds that prohibiting discrimination “because of” a student’s religion does not require adjudicating doctrine.
• Roberts v. U.S. Jaycees, Boy Scouts of Am. v. Dale, Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte, and Runyon v. McCrary guide expressive-association analysis; St. Dominic’s associational theory fails because it did not show that eliminating a Catholic preference (while still requiring all students to support the Catholic mission) significantly impairs the school’s ability to express its viewpoints.
• Agency for Int'l Dev. v. All. for Open Soc'y Int'l, Inc. and Rumsfeld v. F. for Acad. & Institutional Rts., Inc. (FAIR) set the unconstitutional-conditions frame; the court emphasizes that a condition cannot be unconstitutional if the same rule would be constitutional as a direct regulation.

3.2 Legal Reasoning (How the Court Reached Its Results)

A. Employment Rule: no “arguably proscribed” conduct, no credible threat, no jurisdiction

The Employment Rule would be controversial only if it actually constrained St. Dominic’s religious hiring/firing practices. But the court reads the MHRA’s express carveouts—especially (i) the definition of “employer” excluding certain religious nonprofits “with respect to employment of its members of the same religion” and (ii) § 4573-A(2) permitting religious organizations to require conformity with religious tenets—as fully protecting St. Dominic’s stated employment policies, including those related to sexual orientation and gender identity. With the statute’s text, the district court’s reading, and the Commissioners’ concession aligned, St. Dominic could not show injury in fact. Under Article III (and cases like TransUnion LLC v. Ramirez), the court refused to issue an advisory injunction.

B. Religious Expression Rule: facial nonneutrality triggers strict scrutiny, and the State did not justify it

The Religious Expression Rule bars a publicly funded school from “discriminat[ing] between religions” in “religious expression” to the extent the school permits such expression. The First Circuit’s key move is to treat the rule as facially nonneutral: unlike “ritual sacrifice” ordinances in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, “religious expression” is not a category with a readily severable secular meaning, and the rule expressly singles it out. That facial targeting is enough to trigger strict scrutiny.

At strict scrutiny, the State gestured at interests like combatting discrimination and protecting student rights, but the court found no compelling, narrowly tailored justification for forcing religious schools—on pain of MHRA liability—to operate as evenhanded interfaith fora whenever they permit student religious participation. The court also reasoned that, after Carson v. Makin, Maine cannot defend such a burden as necessary to protect constitutional values when the Constitution does not require Maine to impose that particular burden on religious schools in the first place.

C. Religious Nondiscrimination Rule: narrowed justiciability; then Smith plus rational basis

The court sharply distinguishes (i) St. Dominic’s “mission-oriented admissions practices” (requiring agreement to support the Catholic mission, attend Mass, etc.) from (ii) an explicit “Catholic preference” in admissions and financial aid. It found no ripe controversy over the first category because the Rule prohibits discrimination “on the basis of religion,” and requiring mission support is not necessarily treating applicants differently because of their religion; absent text, guidance, or enforcement history showing otherwise—and given the Commissioners’ disavowal—the claim was too speculative.

As to the Catholic preference, the case was ripe: preferring Catholics over non-Catholics is quintessential religion-based differential treatment. On the merits, the court rejected a broad Carson theory that would convert any burden on a religious school into “exclusion solely because religious.” Instead, it applied Employment Division v. Smith. The Rule is facially neutral (it bars discrimination “on the basis of religion” rather than restricting religious practices) and generally applicable (geographic and grade-level coverage lines do not single out religion). With no heightened scrutiny, the Rule survives rational basis review because Maine has an unquestionably legitimate interest in preventing religious discrimination in publicly funded schooling, and the prohibition rationally relates to that interest.

D. Sexual Orientation and Gender Identity Nondiscrimination Rule: ripe only as to the agency’s “Gender Presentation Policy,” but still constitutional under rational basis

St. Dominic’s challenge was tied to specific MHRC guidance (a 2016 commission-counsel memorandum) indicating that schools must respect a student’s gender identity in names/pronouns/dress and not penalize transgender presentation. The court found ripeness for that limited application because it was “arguably proscribed” and enforcement was credible, citing ongoing MHRC enforcement in related contexts and the absence of meaningful ambiguity for Pullman abstention.

Yet St. Dominic did not show that the Rule (or that policy) is nonneutral or not generally applicable under Smith. The court also declined to import parental-rights precedents (Mahmoud v. Taylor; Mirabelli v. Bonta) into St. Dominic’s institutional claim, emphasizing the general prohibition on third-party standing (Hollingsworth v. Perry) and the absence of parents as live injunctive plaintiffs. With no heightened scrutiny, rational basis sufficed: Maine’s interest in combating sexual-orientation and gender-identity discrimination in publicly funded K–12 education is legitimate, and the policy is rationally related to that interest.

3.3 Impact (What This Opinion Changes and Signals)

• A new, concrete limit on “religious expression” equal-treatment conditions: The opinion’s most consequential move is its classification of Maine’s Religious Expression Rule as facially nonneutral—thereby triggering strict scrutiny and, at least preliminarily, invalidating the rule as applied to St. Dominic. This creates a roadmap for challenging similarly phrased statutes/regulations that single out “religious expression” for special nondiscrimination constraints, even within generally applicable civil-rights regimes.
• Reaffirmation of Smith as the central test for nondiscrimination conditions tied to public funding: The court squarely holds that Carson v. Makin does not automatically strict-scrutinize every nondiscrimination requirement applied to religious schools receiving public funds. Instead, neutral, generally applicable nondiscrimination rules—at least as applied to admissions preferences and core student-protection provisions—remain reviewed under Smith and often survive under rational basis.
• Sharper pleading and justiciability discipline in school-rights litigation: The court’s narrowing of the Religious Nondiscrimination claim (mission-oriented requirements vs. explicit religious preference) and its limitation of the SOGI claim to a specific “Gender Presentation Policy” underscores that religious schools must tie constitutional theories to concrete, arguably proscribed conduct and credible enforcement risk—especially where the State disavows expansive interpretations.
• Practical regulatory consequence in Maine: On remand, Maine must (at least pending final judgment) refrain from applying the Religious Expression Rule to St. Dominic if it participates in tuition assistance. The rest of the MHRA education regime—religion nondiscrimination and SOGI nondiscrimination—remains enforceable against participating in-state schools, religious or secular, under this panel’s analysis.

4. Complex Concepts Simplified

• Standing / injury in fact: A plaintiff must show a real, imminent harm caused by the defendant and fixable by the court. If the law doesn’t actually restrict the plaintiff’s conduct (because exemptions protect it), the court cannot issue an “advisory” ruling.
• Ripeness: Courts decide disputes when the issue is concrete enough. In pre-enforcement First Amendment cases, it is often enough that the plaintiff plans to act, the law arguably forbids it, and enforcement is realistically threatened.
• Pullman abstention: A federal court sometimes pauses when a state law is genuinely unclear and a state-court interpretation might avoid a constitutional ruling. The First Circuit refused to abstain where the text was clear or the agency had already adopted a definite interpretation.
• Neutral and generally applicable (Smith): If a law does not target religion (neutral) and does not create religion-specific exceptions or burdens (generally applicable), incidental burdens on religious practice typically do not trigger strict scrutiny.
• Facial nonneutrality: A law can be nonneutral “on its face” when it explicitly singles out religious activity for special regulation—here, “religious expression.” That almost automatically escalates judicial skepticism (strict scrutiny).
• Strict scrutiny vs. rational basis: Strict scrutiny requires a compelling governmental interest and narrow tailoring; rational basis requires only a legitimate governmental interest and a reasonable connection between the rule and that interest.

5. Conclusion

St. Dominic Academy v. Makin draws an important constitutional line inside the growing universe of “public funds + private religious education” regulation after Carson v. Makin. Maine may generally condition tuition-assistance participation on neutral, generally applicable nondiscrimination obligations (including religion and SOGI protections) without triggering strict scrutiny, at least on the record and arguments presented here. But Maine likely may not single out “religious expression” for special equal-treatment mandates: by targeting “religious expression” as such, the Religious Expression Rule is facially nonneutral and—absent a compelling, narrowly tailored justification—cannot stand. The decision thereby preserves broad antidiscrimination enforcement in publicly funded private schooling while invalidating a distinct, religion-specific equal-expression requirement that the court viewed as incompatible with the Free Exercise Clause.