A Way Around

Sane Americans need to vote as if our lives depend upon it, because in a very real sense, they do.

In the meantime…

When the religious warriors on the Supreme Court handed down their decision requiring states that funded private schools to fund religious ones as well– Carson v. Makin– our daughter (who spent 20 years on our local school board) asked whether there was now any way to fashion voucher programs that would prevent most religious schools from getting taxpayer money. Surely good lawyers could devise such a work-around.

Turns out there is. And it’s a tactic that can also be used to blunt some of the most dangerous consequences of the Court’s even-more-radical gun decision. (Unfortunately, I see no comparable “work arounds” for the Court’s horrifying abortion decision.)

Maine shows the way to keep public dollars out of church coffers. In Carson, the Court based its decision on the disparate treatment of religious and nonreligious private schools, so Maine eliminated that disparity–and did so in the best possible way.

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 and 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 immediate: 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 “fix” to Maine’s law allows religious schools to participate in the program on an equal basis with other private schools–and as an added bonus, ensures that secular private schools with discriminatory practices will also be denied the right to participate.

In an aside, the Court acknowledged that Maine also retains the right to eliminate its voucher program at any point. (Since most voucher programs–like Indiana’s– have failed to improve student outcomes while bleeding the public schools of needed resources, that’s a right I think they should exercise. But I digress.)

As the linked Times essay pointed out, a version of Maine’s tactic can also be adapted to use by the states (all blue) trying to combat gun violence.

Justice Clarence Thomas’s majority opinion made clear that the constitutionality of restrictions is historically “settled” 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, crowded venues, university campuses and places where alcohol is served.

 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” 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. 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,” but it also draws strong historical support from a host of 19th century “surety laws” recognized in the court’s opinion.

That last “promising reform” echoes several comments made to this blog. 

This guest essay reminds us that–as critical as it is to repair a broken and increasingly illegitimate  Court–until that repair can be accomplished, we are not without resources to fight, or at least blunt, the consequences of the Court’s most dramatic departures from constitutional precedent and common sense. We just need lawmakers who understand the need to do so.

That means that the most important thing we can do is remember in November which party is responsible for replacing Justices committed to the Constitution with  a religious tribunal–and vote accordingly. 


  1. This is a great idea, Sheila!
    I use this same approach when some rabid R accosts me about my stand on abortion in my run for Town Council (as if that’s what we decide in our job running Middlebury).
    I tell them how I’d like to see the country move in the direction of using affordable health care to provide free or low cost birth control and access to family planning, with abortion being rare (mother’s life threatened or rape and incest).
    Its my version of rare and safe that makes it easy to segway into the idea that less ppl on welfare and food stamps are what most taxpayers are excited to hear!
    Its a ‘way around’ that is effective as I ask residents to consider a new voice!
    Unfortunately many Rs aren’t even listening to my concerns for unwanted, unplanned pregnancies as they march right back to how awful Nancy Pelosi and Joe Biden are because they want to murder babies.
    But I persist!

  2. Jane; the only way Indiana has ever kept up with the times is by raising prices on all materials and services while keeping salaries low enough for people who need than not able to afford them. The voucher system is the pride of Indiana’s Republicans while our public schools fall further and further behind in educating our future leaders. Our gun laws are the laxest in the nation; people come from other states to buy guns here because It is so easy. Pence’s RFRA and anti LGBTQ laws have taken their toll. Refusal to allow hemp to be grown as a money crop is depriving farmers of an income and the nation of products and medical treatments to help our tottering healthcare system.

    So why do I stay? I am 85 years old, totally deaf, physically disabled, live alone on a barely above poverty level income in my older home which constantly needs some form of repair or maintenance and drive a 26 year old car. But both are paid for and I cannot afford to sell and pay the high cost of renting or replace my car at this age. In 2021 the Indiana Republican Senate lowered the amount of the 45,000 Public Employee Retirees’ retirement income which we paid for working for the Republican government. Our future is more of the same with the statistics proving that private religious schools do NOT better educate our children.

    Our state motto, “Honest To Goodness, Indiana” should be changed to “WTF, Indiana?”

    Dear Lord, protect this country from your Minions sitting in the Supreme Court!

  3. As it increasingly becomes clear that majority of the rationale for SC majority opinions are based on Christianity and its bibles, it seems more appropriate to regard the Supreme Court as an Ecclesiastical Court Tribunal much as existed in 1500’s Europe,…..possibly elsewhere?

  4. Joann
    18 yr old truck, repaired for 1300$
    Property almost paid off
    Still have eyes, ears, and brain
    But I am 10 years younger
    Not going anywhere
    Will stay to help turn this ship from the crash

  5. Una; we are doing what we can with what we have at hand; as Stephen King has said, “If it isn’t enough, it will have to be enough.” I think only the hail-dented body, engine, seats and steering wheel of my are are actually 26 years old; I have replaced everything else.

    There really is nowhere else to go to escape this nation’s situation; I will continue doing what I can do along with you. Damn the torpedoes, full speed ahead…if we can get this ship out of whatever is first gear on board ships.

  6. JoAnn,

    I loved your two closing statements. But I would expand the WTF reference to Florida, Texas, Ohio, et. al., wherever a Republican legislature works to destroy our democracy, Constitution and human rights.

    Ben Franklin’s spooky prophecy “…if we can keep it.” has never been more poignant. Thanks to idiotic Republican Presidents, we have a SCOTUS majority that is now institutionalizing lying as well as practicing backward interpretations of the law, the Constitution and the basic rights of Americans. THIS is what electing Republicans does to democracy!

    Yes, we will have to perform workarounds, but the wasted energy must be endured until the old farts Alito and Thomas find a better pasture for the B.S. It’s truly sickening to see three decisions be so harmful, but that’s who these bastards are. It’s what they’ve always been.

    Now what do we do?

  7. I had watched er,heard, c spans supreme court arguments in various subjects over the years. some baffled me on subject matter of cases and arguments that seem in other rhelms. i didnt have the time off fixin your highways to get to it,miss V..,but the abortion issue should just be a law. Sheila put forth how Maine is getting around the voucher,smart,and in touch with todays view. many arguments in court reflect how well a lawyer represents,their knowlege.
    then we have deliberate attempts to thwart something else. seems the republicans can only muster hate and discontent. no answer to issues,just create more issues,because they want to throw water on their own fight. Im facing the other side in face to face conversation in my socio economic class,proves this daily.. seems the abortion issue hasnt even made grade yet in recent conversations with peers. seems it was really not on their radar. these are trumpers in a less than living wage. seems the powers who argued before the court,must have been part of a deep playbook designed by people who,maybe are better off. seems they may have thrown water on their own.. what one thinks down inside may trigger a change at the poles in nov. living in NoDak,it hs a trigger law,it will change,as soon as the raga attny,gen signs it and the gov signs it,done deal.. I personally supported the RR clinic in Fargo. i also personally held a few hands who went there. they needed a friend,i did the best i could. the court argued to take away a right,sponsored by a buncha asswipes who havent a care about,your rights..best wishes..

  8. Perhaps we can motivate the insurance industry to lobby state legislators to require gun owners to possess firearm liability insurance. It would be quite lucrative for insurance agents and the companies they represent.

  9. Hi all – been on Covidvacation thanks to a ME FIRST millennial wedding. Still sick as a pup.

    Big week last week. Easy to summarize – welcome to American constitutional authoritarianism. Next comes taking away authority for environmental rules. They always save the best for last.

    They hide nothing: their motto/march is “2nd Amendment”, “Prolife”, “Freedom from Government”. And then they execute at every level in all three branches.

    To Ms. Average voter we delivered Covid relief money – $700B to grifters and hard infrastructure – likely to be something similar. Who works for average people? NO ONE.

  10. JoAnn – I love your state motto suggestion. However, I don’t believe the Lord considers the religious zealots on the sop to be his minions. They are more likely the devil’s minions.

  11. Dems and liberals in general need to take a lesson from the conservatives and begin to both understand and play the long game. Find ways around these latest rulings, but remember that we really need permanent fixes. Might take a few years, but it’s so much better than just accepting this B.S.

  12. There is a horrible and extremely contagious disease in this country that has infected millions of people with the belief that they are Christians. This infection attacks their reading comprehension of the scriptures and causes them to completely misunderstand them – or even worse – injects words, sentences and commandments into the scriptures that don’t actually exist. Believing they should have the right to hatefully discriminate against some people and force their misguided personal scripture interpretation onto other people are just two of the many many side effects of this destructive disease . This disease causes them to completely ignore the words of Jesus that are contained in the scriptures – the actual words that true Christians are to understand and try to follow. Unfortunately, this disease has infected people at all levels within our government.

  13. Beth has a well thought out plan of action!

    These very discussions have been going on for a long time. The issue of having a tax-exempt status when receiving public funds as in Catholic charities. An organization that can discriminate against women for making a certain choice, how can they be trusted to be fair and equal in all of the assistance that they claim to hand out?

    And not just Catholic charities, it’s the Evangelical realm that will discriminate against individuals because of different beliefs, but then they have their hand out for public funds!

    If these organizations decide to be political which obviously they are, then they also become a political entity which can be taxed. They cease to be strictly a religious organization worshiping as they see fit. And, they support candidates which have viewpoints that are not compatible with secular society.

    Make no mistake, Catholic charities does do some good work, but, with public funding, they cannot be pickers and choosers not only for those that they help but those that work for them.

    GW 2 was the one that pushed the issue for public funding to religious charities. Because they claim was, they had the infrastructure, but, it goes against the constitutional tenet to build a wall between church and state, and also the biblical tenet, give Caesar’s things to Caesar but God’s things to god! And back when this was written, the synagogues and houses of worship had to pay tax to the Roman Government! Jesus Christ knew that, and he implored his followers to pay their taxes! He also implored his followers not to become involved in politics because those were part of Caesar’s things, somehow that’s been forgotten.

    The ability to stick a pin in what’s been happening, to deflate it, is there! Ringing hands and gnashing teeth are not going to get it done.

  14. Nancy is on to something. I used to talk to human underwriters in re how they set rates based on loss experience, and while that may be computerized these days it takes humans to feed the numbers into the electronic maw. I would not want their job if and when Congress and/or state legislators decide that gun owners must buy liability insurance for their guns, especially AR-15s, and even though death and injury records are available to human underwriters, there is little to no loss experience available for rate-setting which suggests that underwriters early in the game are themselves, so to speak, shooting in the dark.

    I would expect minimum liability limits to be set by statute and to be high, especially for AR-15 owners, which suggests that reinsurance companies such as Zurich will get into the act to insure catastrophic losses (school shootings etc.). Expect emotional litigation. To fellow contributor Vern’s often observation that he’s glad he’s old I here add that I’m glad I’m neither an underwriter nor an insurance company stockholder when this new insurance line of personal injury and homicidal coverage comes to the fore in such uncharted territory of unknown risk. Color me yellow.

  15. It looks like the economic wolves just took out women. Was it white women or women of color, too?

    I have to make sure which identity mask got punched in the face today…

  16. Jack, not just “idiotic Repiublian Presidents,” but tratorous, and illegitimate ones: Reagan, GWB, and, of course Donny-boy.
    Nancy, it’s not that the republicans “can only muster discontent,” but that that’s all they WANT to muster. The entire abortion issue
    was chosen by them, because they knew it would energize their idiot base, get the votes thereof; it has just been a tool! And, they
    give not a damn for any pain it may create.
    John, you make a very interesting point, just because these folks think they are Christians, does not make them so. Hatefully discriminating
    against some people does not seem very Christian to me. It does, however, put me in mind of C. Hitchens’ phrase, “Religion spoils everything.”
    Taxing churches that go political (fat chance!) would be nice; insurance related to gun ownership would be nice (fat chance!); increasing the Dem
    edge in the Senate, however, has some chance, even if thin.
    I am hoping, dearly, that the new reality, here, will energize a huge blue wave in the coming mid-term elections, and help the Dems get rid of
    the damned filibuster, Then, maybe congress can get on with legislating for the common people.

  17. If, as today’s blog suggests, working on a way around the abortion issue. Why have we not made men take more responsibility, it does take two. With DNA testing it can be proven if they are the father. Then enacting laws to make them take financial responsibility including supporting the woman & child financially, medically, living costs, education and all the responsibilities a father would take including rights to the father’s estate upon death. This would be in effect until the child became a legal adult. If women can no longer choose a man can no longer decided not to take on the responsibility of parenthood. I am sure not an original idea but one that needs to be explored and pushed especially now.

  18. Booklady is absolutely right. It takes two to create all those pregnancies, and guys need to be held responsible for their part. DNA testing should prove who’s a dad and who isn’t. Some guys are likely to leave the scene, but if they owe a lot of child support, the state has more incentive to track them down. No more “boys will be boys” as they waltz away leaving the girl to deal with the fallout.

  19. Sheila – thank you for the hopeful thoughts on some things that can be done. I like them. We need to put more creative minds together for other great ideas. Sadly, it does take legislative action, which precludes Indiana, among other states.

    As for guns –
    They used to fantasize about being John Wayne, strutting with their six-gun in the old west; now it is Rambo with their assault weapons. Very sad.
    Going back to their first image, and “historically ‘settled’ sensitive places”, sensitive places often meant anywhere. In the old west and in some southern states, laws were passed against carrying concealed guns and knives anywhere. In Tombstone, you needed to check your guns when you came to town. Maybe the Supremes need a history lesson, not that they would care.

    Beth – sadly, I suspect that some, even many, anti-abortion people don’t believe in birth control, except perhaps in limited circumstances. A friend explained his abortion stance to me as this – sex is sinful except in marriage; he would hope that everyone who engaged in sinful sex would get pregnant and be forced to carry the baby to term. To him (white male, originally from Missouri) pregnancy was a rightful “punishment” for engaging in sex acts. (Note – I didn’t ask him if he approved of non-genital sex acts, but he would have probably suggested VD for those acts.) However, your segway into money – excellent.

    Vernon – as usual I agree with you, but I would add that a good deal of the fault for the courts lies with Mitch, and the so-called “moderate Republicans” that we are told to support and/or praise, who closed their eyes, put their fingers in their ears, and shouted “La, La, La, La, La, I’m with Mitch”, as if they didn’t know the consequences of their actions.

    Nancy – great idea

    Lester – slight correction in their motto – “freedom from government, EXCEPT in the bedroom”

    Peggy – Amen

    Booklady – good idea, except it does bump up against privacy rights of the “accused” father (not yet proven responsible)

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