St. Dominic Academy v. Makin

• Court: Court of Appeals for the First Circuit
• Decided: July 2, 2026
• Docket: 24-1739
• Status: Published

Opinion

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

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-for- school/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,

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

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.

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

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)).

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.

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

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/inline- files/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.

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/inline-

files/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.

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

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.").

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

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.

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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