Justice Department supports religious discrimination lawsuit over school voucher exclusion

A federal lawsuit challenging the exclusion of a religious school from a state-funded voucher program gained a powerful backer last week when the U.S. Department of Justice filed a “Statement of Interest” in the case supporting the plaintiff. The DOJ argues that Maryland’s decision to exclude Bethel Christian Academy from the state’s voucher program – due to the school’s policies related to same-sex marriage and biological sex – likely violated the school’s right to Free Speech and the Free Exercise of religion.

Maryland’s BOOST program provides scholarships for students in low-income families to attend eligible nonpublic schools. To be “eligible,” a school must agree not to discriminate in admissions on the basis of race, national origin or sexual orientation. Program officials stripped Bethel Academy of its eligibility and demanded the return of previous payments. This came after officials discovered that the school’s handbook requires students, faculty and staff to align their conduct with the institution’s position that marriage is defined as a “covenant between one man and one woman, and that God immutably bestows gender upon each person at birth as male or female… .”

The Justice Department brief emphasizes that Bethel, a K-8 school, has stated that it does not engage in discrimination and thus complies with the eligibility requirements. The state is penalizing Bethel, they contend, for holding unpopular religious views. Here is an excerpt:

Defendants assert that they are not punishing Bethel for its viewpoint on sexuality per se, but are merely regulating discriminatory conduct, arguing that the Parent-Student Handbook’s statement about marriage “is operative, and therefore not speech.” But Bethel has repeatedly denied that it ever has excluded—and has repeatedly disclaimed any intention to exclude—any child based on sexual orientation or gender identity. Defendants cannot transform Bethel’s expression into an operative act of discrimination by insisting that it is so.
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Bethel is being penalized for refusing to disavow its “religious character.” It has been removed from the BOOST program, and has been billed for more than $100,000 in scholarships for which it has already provided services to children, because it refused to revise its statements of its beliefs and its expectations for students in the Parent-Student Handbook.

The District Court previously rejected Maryland’s motion to dismiss the case, ruling that because Bethel stated that it does not discriminate in admissions, the complaint “plausibly alleged that Defendants infringed upon several of its constitutional rights.”  The U.S. Supreme Court is set to hear oral argument in a much different case involving a school funding program early next year. Espinoza v Montana Department of Revenue is a challenge to a Montana rule excluding religious schools from participating in the state’s tuition tax credit program in light of state law prohibiting the government from funding religious education.