Elite Law Brain: June 24, 2022Comments
The self-delusion from elite liberal law people is really quite damaging. The Times published this the day Roe was overturned.
What a week so far for conservatives. On Tuesday, the Supreme Court struck down a Maine law that prohibited religious private schools from receiving taxpayer dollars. On Thursday, it invalidated a New 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 of cases; the gun case’s outcome was clear 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, will 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.
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 and sexual orientation, and it applies to every private school 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 or alter their “admissions standards” 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 of a 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. (Whether it should is a closer question that ought to turn on 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 — provide vouchers or similar tax-credit scholarships 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 in Maryland’s legislature, the General Assembly. Lawmakers there should quickly enact it. Other states should also prohibit such discrimination.
Can’t these people see that their mental gymnastics that you can get around the courts is going to completely fail because Sam Alito is going to wipe his butt with a piece of paper and call it his opinion and it will pass 6-3? No, they can’t because their entire professional career revolves around the idea that The System Works. Sure, states can try this and that but we all know–WE ALL KNOW–what the courts will decide. Will there be any consistency between allowing the states power on this one thing and the federal government the power on this other thing? No of course not, we already know that from the many decisions of the last few years. Whatever fits Republican politics is how they will vote. The upcoming federal abortion ban–which the courts will have largely enacted in practice well before Republicans control the trifecta and eliminate the filibuster by simply ruling this and that way to eliminate whatever blue states try–will demonstrate, I hope, once and for all that the system does not work. It is broken. Completely 100% broken. We are ruled by Opus Dei and they do not care what you think about it. Blue states can kill some time by forcing the courts to intervene repeatedly and that has value, yes. But the system no longer works, if it ever really did.