[The legislative fix made by Maine lawmakers offers a model for
lawmakers elsewhere who are alarmed by the court’s aggressive swing
to the right. ]
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THERE’S A WAY TO OUTMANEUVER THE SUPREME COURT, AND MAINE HAS FOUND
IT  
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Aaron Tang
June 23, 2022
The New York Times
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_ The legislative fix made by Maine lawmakers offers a model for
lawmakers elsewhere who are alarmed by the court’s aggressive swing
to the right. _

The Maine State House in Augusta, Craig Dilger for The New York Times


 

What a week so far for conservatives. On Tuesday, the Supreme Court
struck down
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law that prohibited religious private schools from receiving taxpayer
dollars. On Thursday, it invalidated
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York State gun safety law limiting the public carry of firearms. And
on Friday, it overturned Roe v. Wade. The outcome in these cases_ _was
not surprising. The court has ruled in favor of religious litigants in
an overwhelming number
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of cases; the gun case’s outcome was clear
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from the oral argument before the justices in November; and the
court’s draft abortion decision was leaked in May.

What is surprising is how little the 6-to-3 decision in the Maine
case, Carson v. Makin
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matter practically. And the reason offers a glimpse of hope for those
who worry 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 & Pistol
Association v. Bruen
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Let’s start with the Carson case. Anticipating this week’s
decision, Maine lawmakers enacted a crucial amendment to the state’s
anti-discrimination law last year in order to counteract the expected
ruling. The revised law forbids discrimination based on gender
identity
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and sexual orientation, and it applies to every private school
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that chooses to accept public funds, without regard to religious
affiliation.

The impact was significant: The two religious schools at issue in the
Carson case, Bangor Christian Schools and Temple Academy, said that
they would decline state funds if, as Maine’s new law requires,
accepting such funds would require them to change how they operate
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or alter their “admissions standards”
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to admit L.G.B.T.Q. students.

The legislative fix made by Maine lawmakers offers a model for
lawmakers elsewhere who are alarmed by the court’s aggressive swing
to the right. Maine’s example shows that those on the losing end of
a case can often outmaneuver the court and avoid the consequences
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ruling.

 

By enacting its law, Maine was able to assure its taxpayers that they
will not be complicit in discriminating against L.G.B.T.Q. students,
because private schools that discriminate will be ineligible for
public funds. The law will limit church-state entanglement, assuming
other religious schools decline funding for the same reasons as the
schools in Carson. And although nondiscriminatory private schools can
still receive public funds, Maine can eliminate that program at any
point — a fact the court conceded
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(Whether it _should _is a closer question that ought to turn on the
program’s impact on educational equity
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Other states should follow Maine’s lead. A handful of blue states
— including Illinois, Maryland, Nevada and Vermont — provide
vouchers or similar tax-credit scholarships
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to low-income students to enroll in private schools. None of them,
however, enacted a statute prohibiting funds-receiving private schools
from discriminating against L.G.B.T.Q. students. Legislation that
would do so is pending
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in Maryland’s legislature, the General Assembly. Lawmakers there
should quickly enact it. Other states should also prohibit such
discrimination.

And lawmakers troubled by the court’s gun safety decision and
worried about the looming ruling on abortion should also take a page
from Maine’s playbook

Now that the court has struck down
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York’s limits on who may carry guns in public, state lawmakers there
and in other states should pass new laws to deter gun violence.
Justice Clarence Thomas’s majority opinion made clear that the
constitutionality of restrictions is historically “settled
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in “sensitive places” such as legislatures, courtrooms and polling
locations, and that “modern regulations” may “prohibit” the
carry of firearms in “new” places. Given that, states should enact
an expansive list of so-called sensitive places where guns may not be
carried. Though Justice Thomas did not specify which those might be,
during oral arguments in November, several justices pondered that they
might include public transportation
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crowded venues
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university campuses
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and places where alcohol is served
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Justice Brett Kavanaugh noted in a concurrence joined by Chief Justice
John Roberts, moreover, that while states may not impose restrictions
that prevent “ordinary, law abiding citizens
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from carrying a gun to defend themselves, states can still enact
rigorous requirements for a public carry permit, such as stringent
background and mental health records checks and completion of regular
training courses.

Another promising reform for states to consider would be to require
gun owners to possess firearm liability insurance
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Not only would such a requirement ensure that victims of gun violence
can recover for their losses and “provide financial incentives for
responsible arms carrying
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but it also draws strong historical support from a host of 19th
century “surety laws” recognized in the court’s opinion
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And on Friday, the court eliminated the right to abortion. Because of
the sweeping nature of the court’s decision, there are some limits
on what pro-choice states can do alone. But at a minimum, lawmakers
should act vigorously
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to ensure that abortion providers are able to serve out-of-state
patients unable to obtain care in their home states. Connecticut
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and New York
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have already passed such laws; others should follow suit.

As Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan noted
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in their dissent, “it is women who cannot afford” to travel to
other states “who will suffer the most.”

To protect these patients, lawmakers must act at the national level.
So the Biden administration should argue
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that Food and Drug Administration rules permitting the use of
mifepristone to terminate a pregnancy override contrary state laws.
Promisingly, Attorney General Merrick Garland issued a statement on
Friday
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advancing precisely this approach. Congress should also continue
working to enact the Women’s Health Protection Act
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enshrine a right to abortion as a matter of federal law, even though
the filibuster remains an obstacle.

Last fall, Justice Sotomayor, for whom I clerked in 2013-14, predicted
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that there would be “a lot of disappointment in the law” in the
current court term. Now we see why. For understandable reasons, some
critics of the current court have girded
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for a battle to expand the number of justices. Maine has shown another
promising path. Sometimes, the best way to protect against
overreaching by the conservative court is through good old-fashioned
lawmaking.

Aaron Tang [[link removed]] (@AaronTangLaw)
is a law professor at the University of California, Davis, and a
former law clerk to Justice Sonia Sotomayor.

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* Maine's Anti-discrimination Education Law; Restricting Guns; Access
to Abortion Laws;
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