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Reviews |  Maine’s end around the Supreme Court is an example for other states

What a week so far for the Conservatives. On Tuesday, the Supreme Court struck down a Maine law that barred religious private schools from receiving taxpayer money. And on Thursday, he struck down a New York state gun safety law restricting the public carrying of firearms. The result 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 firearms case was clear from the oral argument before the judges in November.

What is surprising is how the 6-to-3 decision in Maine’s Carson v. makin, will be of little importance in practice. And the reason offers a glimpse of hope for those worried about a future dominated by the court’s conservative supermajority — including the many Americans troubled by the court’s decision in the New York State gun case. Rifle and Pistol Association v. Brun.

Let’s start with the Carson case. Anticipating this week’s ruling, Maine lawmakers signed into law a crucial amendment to the state’s anti-discrimination law last year to counter the expected ruling. The revised law prohibits discrimination based on gender identity and sexual orientation, and it applies to all private schools that choose to accept public funds, regardless of religious affiliation.

The impact was immediate: the two religious schools involved in the Carson case, Bangor Christian Schools and Temple Academy, said they would refuse public funds if, as required by Maine’s new law, accept such funds would require them to change the way they operate or alter their “admissions standards” to admit LGBTQ students.

The legislative solution crafted by Maine lawmakers offers a model for lawmakers elsewhere who are alarmed by the court’s aggressive shift to the right. The Maine example shows that the losers in a case can often outwit the court and avoid the consequences of a decision.

By enacting its law, Maine was able to assure its taxpayers that they would not be complicit in discriminating against LGBTQ students, as private schools that discriminate will not be eligible for public funds. The law will limit church-state entanglement, assuming other religious schools refuse funding for the same reasons as Carson schools. And while nondiscriminatory private schools can still receive public funding, Maine can eliminate that program at any time — a fact the court acknowledged. (that he should is a closer question that should focus on the impact of the program on educational equity.)

Other states should follow Maine’s lead. A handful of blue states — including Illinois, Maryland, Nevada and Vermont — offer similar tax credit vouchers or scholarships to low-income students to attend private schools. However, none of them have enacted laws prohibiting private schools receiving funding from discriminating against LGBTQ students. Legislation that would do so is pending in Maryland’s legislature, the General Assembly. Lawmakers should enact it quickly. Other states should also prohibit such discrimination.

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

Now that the court struck down New York’s limits on who can carry guns in public, state lawmakers there and in other states are expected to pass new laws to deter gun violence. Justice Clarence Thomas’ majority opinion made it clear that the constitutionality of restrictions is historically “settled” in “sensitive places” such as legislatures, courtrooms and polling places, and that “modern regulations can “prohibit” the carrying of firearms in “new” places. Given this, states should enact a long list of so-called sensitive places where firearms cannot be carried. Although Judge Thomas did not specify which ones might be, during oral arguments in November several judges pondered that they might include public transportation, crowded places, college campuses and places where one serves alcohol.

Justice Brett Kavanaugh noted in an agreement joined by Chief Justice John Roberts, further, that while states cannot impose restrictions preventing “ordinary, law-abiding citizens” from carrying a gun for self-defense , states can still enact stringent requirements for public transportation. permits, such as rigorous background and mental health records checks and completion of regular training courses.

Another promising reform that states should consider would be to require gun owners to carry firearms liability insurance. Not only would such a requirement ensure that victims of gun violence can recoup their losses and “provide financial incentives for responsible gun carrying”, but it also draws on strong historical support from a host of “laws sur les liens” of the 19th century recognized in the opinion of the court. .

We are still awaiting the abortion court’s decision in Dobbs v. Jackson Women’s Health Organization. If Judge Samuel Alito’s leaked draft opinion quashing Rode v. Wade becomes law, states that support abortion rights should respond with all means at their disposal. Lawmakers should act vigorously to ensure that abortion providers are able to serve out-of-state patients unable to seek care in their home country. Domestically, the Biden administration should argue that Food and Drug Administration rules allowing the use of mifepristone to terminate a pregnancy trump state laws to the contrary. Congress should also continue to work to enact the Women’s Health Protection Act to enshrine abortion rights as a matter of federal law, even if filibuster remains a hurdle.

Last fall, Justice Sonia Sotomayor, for whom I served as clerk 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 tribunal have braced themselves for a battle to increase the number of judges. Maine showed another promising path. Sometimes the best way to protect against the excesses of the Conservative court is to pass good old-fashioned legislation.

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

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