opinion | Men’s and Run Around the Supreme Court Offers States a Blueprint on Guns
What a week so far for conservatives. On Tuesday, the Supreme Court struck down a Maine law that barred religious private schools from receiving taxpayer dollars. And on Thursday, it invalidated New York state’s gun safety law limiting the public carry of firearms. In these cases the result was not surprising. The court has ruled in favor of religious litigants in a vast number of cases, and the outcome of the gun case was evident from oral arguments before judges in November.
What’s surprising is how little a 6 to 3 decision of Carson v. Makin in the Maine case would be practically. And the reason it offers a glimmer of hope to those who worry about the court’s conservative-dominated future—including many Americans upset 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. Anticipating this week’s decision, Maine lawmakers made a significant amendment to the state’s anti-discrimination law last year to counteract the expected rule. The amended law prohibits discrimination on the basis of gender identity and sexual orientation, and applies to every private school that chooses to accept public money without regard to religious affiliation.
The effect was immediate: the two religious schools at issue in the Carson case, Bangor Christian School and Temple Academy, stated that they would reject state funding, as the new law of Maine requires, to accept such funding. They would need to change how they operate or change their “entry standards” to admit LGBTQ students.
The legislative determination drawn up by Maine lawmakers provides a model for lawmakers elsewhere who are concerned with the court’s aggressive swing to the right. Maine’s example shows that case losers can often walk out of court and avoid the consequences of a verdict.
By enacting its law, Maine was able to reassure its taxpayers that they would not engage in discriminating against LGBTQ students, as private schools that discriminated would be ineligible for public funding. The law would limit church-state entanglement, assuming that other religious schools lack funding for the same reasons as Carson’s schools. And although non-discriminatory private schools can still receive public funding, Maine can end that program at any time—a fact the court acknowledged. (Whether this should be a close question should turn to the program’s impact on educational equity.)
Other states should follow Maine’s lead. A handful of blue states, including Illinois, Maryland, Nevada, and Vermont, offer vouchers or similar tax-credit scholarships to low-income students to enroll in private schools. However, none of them enacted a law prohibiting private schools from discriminating against LGBTQ students. Legislation to do so is pending in Maryland’s legislature, the General Assembly. The MPs there should implement it quickly. Other states should also ban such discrimination.
And lawmakers upset by the court’s gun-safety ruling and intrigued by the impending decision on abortion should also take a page from Maine’s playbook.
Now that the court has removed New York’s limits on who can carry guns in public, state lawmakers must pass new laws to prevent gun violence in and around other states. The majority opinion of Justice Clarence Thomas clarified that the constitutionality of restrictions has historically “settled” in “sensitive places” such as legislatures, courts and polling places, and “modern rules” carry firearms in “new” places. “Ban” can be imposed. , In view of this, states should make a comprehensive list of so-called vulnerable places where guns cannot be carried. Although Justice Thomas did not specify which they might be, during an oral debate in November, several judges thought they might include public transportation, crowded places, university campuses and places where alcohol is served. She goes.
Justice Brett Kavanaugh noted in a concurrence included by Chief Justice Roberts, furthermore, that while states cannot impose restrictions that prevent “ordinary, law-abiding citizens” from carrying guns to defend themselves, States can still impose stricter requirements for public carry permits. Such as rigorous background and mental health record checks and completion of regular training courses.
Another promising reform for states would be to require gun owners to have firearm liability insurance. Such a requirement would not only ensure that victims of gun violence could be compensated for their losses and “provide a financial incentive for responsible weapon carrying”, but it would also, in the opinion of the court, be recognized by the “bail laws” of the 19th century. Receives strong historical support from a host of ,
We still await the court’s decision on abortion in Dobbs v. Jackson Women’s Health Organization. If Justice Samuel Alito’s leaked opinion dismisses Rod v. Wade, it becomes law, which states that advocates for abortion rights must by all means at their disposal. Lawmakers must act vigorously to ensure that abortion providers are able to serve out-of-state patients unable to receive care in their home states. Nationally, the Biden administration must argue that Food and Drug Administration rules allowing the use of mifepristone to terminate a pregnancy override contrary state laws. Congress must also continue to work to enact the Women’s Health Protection Act to ensure the right to abortion as a matter of federal law, even if filibuster remains an obstacle.
Last fall, Justice Sonia Sotomayor, for whom I clerked in 2013-2014, predicted there would be “a lot of frustration in the law” in the current court period. Now we see why. For understandable reasons, some critics of the current court are gearing up to fight to expand the number of justices. Maine has shown another promising path. Sometimes, the best way to protect against redundancies by a conservative court is to make good old-fashioned legislation.
Aaron Tang (@AaronTangLaw) is a professor of law at the University of California, Davis, and a former law clerk to Justice Sonia Sotomayor.