What a week so far for conservatives. On Tuesday, the Supreme Court rejected a law in Maine that banned private religious schools from receiving tax dollars. And on Thursday, it invalidated a New York State gun safety law that restricts the public carrying of firearms. The outcome in these cases was not surprising. The court has ruled in favor of religious litigants in an overwhelming number of cases, and the outcome of the gun case was clear from pleadings before the judges in November.
What is surprising is how little the 6-to-3 decision in the Maine case, Carson v. Makin, matters practically. And the reason offers a glimmer of hope for those concerned about a future dominated by the court’s conservative supermajority — including the many Americans troubled by the court’s decision in the gun case, New York State Rifle and Pistol Association v. Bruen.
Let’s start with the Carson case. Ahead of this week’s decision, Maine lawmakers passed a critical amendment to the state’s anti-discrimination law last year to thwart the expected ruling. The revised law prohibits discrimination based on gender identity and sexual orientation, and applies to any private school that chooses to accept public funds, regardless of religious affiliation.
The impact was immediate: The two religious schools at issue in the Carson case, Bangor Christian Schools and Temple Academy, said they would withhold state funds if, as Maine’s new law requires, it would require accepting such funds. that they change the way they operate or their “admission standards” to admit LGBTQ students.
The legislative correction made by Maine lawmakers provides a model for lawmakers elsewhere alarmed by the court’s aggressive swing to the right. The Maine example shows that those on the losing side of a case can often outsmart the court and avoid the consequences of a ruling.
By enacting its law, Maine was able to assure its taxpayers that they will not be complicit in discriminating against LGBTQ students because private schools that discriminate are ineligible for public funds. The law will limit the church-state entanglement, assuming other religious schools refuse funding for the same reasons as the schools in Carson. And while non-discriminatory private schools can still receive public funds, Maine can discontinue that program at any time — a fact the court admits. (If it should is a further question that should influence the impact of the program on education equality.)
Other states should follow Maine’s lead. A handful of blue states — including Illinois, Maryland, Nevada and Vermont — offer vouchers or similar tax credit grants to low-income students to enroll in private schools. However, none of them have passed a statute that prohibits private schools that receive funding from discriminating against LGBTQ students. Legislation that would do so is pending in Maryland’s legislature, the General Assembly. Lawmakers there should introduce it soon. Other states should also prohibit such discrimination.
And lawmakers alarmed by the court’s decision on gun safety and concerned about the impending abortion ruling should also take a page from Maine’s playbook.
Now that the court has lifted New York’s borders for those who can carry guns in public, state lawmakers there and in other states must pass new laws to deter gun violence. Judge Clarence Thomas’ majority opinion made it clear that the constitutionality of restrictions has historically been “settled” in “sensitive places” such as legislatures, courtrooms and polling stations, and that “modern regulations” may “ban” the carrying of firearms in “new” places. . That is why states should draw up a comprehensive list of so-called sensitive places where weapons are not allowed to be carried. Though Judge Thomas didn’t specify which ones those might be, several judges during pleadings in November reflected on public transportation, crowded locations, college campuses and places where alcohol is served.
In addition, Judge Brett Kavanaugh noted in a meeting with Chief Justice John Roberts that while states cannot impose restrictions that prevent “ordinary, law-abiding citizens” from carrying a gun to defend themselves, states can still impose strict requirements on a public transit permit. , such as strict background and mental health checks and regular training.
Another promising reform for states to consider would be to require gun owners to have firearms liability insurance. Not only would such a requirement allow victims of gun violence to recover their losses and “provide financial incentives for responsible gun ownership”, but it also gains strong historical support from many 19th-century “guarantee laws” that are believed to be be recognized by the court.
We are still awaiting the court’s abortion decision in Dobbs v. Jackson Women’s Health Organization. If Judge Samuel Alito’s leaked draft opinion quashing Rode v. Wade becomes law, he argues that abortion rights support must respond by all available means. Lawmakers must act strongly to ensure that abortion providers are able to help out-of-state patients who cannot receive care in their own country. At the national level, the Biden administration should argue that Food and Drug Administration rules permitting the use of mifepristone to terminate a pregnancy ignore conflicting state laws. Congress should also continue to work on enacting the Women’s Health Protection Act to establish the right to abortion as a matter of federal law, even as the filibuster remains an obstacle.
Last fall, Judge Sonia Sotomayor, for whom I clerked in 2013-14, predicted there would be “a lot of disappointment in the law” in the current term. We now see why. For understandable reasons, some critics of the current court have called for a struggle to increase the number of judges. Maine has shown another promising path. Sometimes the best way to protect against overreach by the conservative court is through good old-fashioned legislation.
Aaron Tang (@AaronTangLaw) is a law professor at the University of California, Davis, and a former Attorney General Sonia Sotomayor.