Tag Archives: Maine

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. 




Enlarging The Already-Big Hole In the Wall

The overtly pious Justices placed on today’s Supreme Court by Mitch McConnell aren’t likely to stop imposing their religious beliefs with their decision to overrule Roe v. Wade. Multiple observers have warned that we are dealing with religious zealots intent upon enforcing their vision of Christian Nationalism–a vision that goes well beyond the effort to put women in our “proper” (i.e., subservient) place.

This is a Court that has bent over backwards to elevate religion– especially conservative Christian religion.

If we look at the Court’s “pipeline,” we can see that the hits are likely to continue coming. I’ve posted previously about the case of the public school coach who wants to lead prayer on the fifty-yard line, and the fact that, during oral argument, the Justices seemed inclined to allow him to do so. But that’s not the only vehicle available to a Court intent upon empowering their particular version of Christianity.

As Adam Liptak reported in December,

The Supreme Court on Wednesday seemed ready to take another step in requiring states to pay for religious education, with a majority of the justices indicating that they would not allow Maine to exclude religious schools from a state tuition program.

The court has said that states may choose to provide aid to religious schools along with other private schools. The question in the new case was the opposite: Can states refuse to provide such aid if it is made available to other private schools?

The State of Maine has a number of rural communities that do not have public secondary schools. Maine law requires those communities to send young residents elsewhere for their education, and to do so in one of two ways:’ They can sign contracts with nearby public schools, or they can pay tuition at a private school chosen by the student’s parents so long as it is, “a nonsectarian school in accordance with the First Amendment of the United States Constitution.”

This case arose when two families in Maine challenged that law. The parents want to send  their children to religious schools, and they argue that the state’s refusal to spend tax dollars to allow them to do so violates their right to the free exercise of their faith.

As Liptak noted, religious litigants have found the current court to be very hospitable to their arguments.

Religious people and groups have been on a winning streak at the Supreme Court, which seemed likely to continue in the new case. In recent decisions, the justices have ruled against restrictions on attendance at religious gatherings to address the coronavirus pandemic and Philadelphia’s attempt to bar a Catholic agency that refused to work with same-sex couples from screening potential foster parents.

The court also ruled that the Trump administration could allow employers with religious objections to deny contraception coverage to female workers and that employment discrimination laws do not apply to many teachers at religious schools

The likely precedent for this decision is a case called Espinoza v. Montana Department of Revenue. In that case, the Court found that a provision of the state’s Constitution banning aid to schools run by churches ran afoul of the  Constitution’s Free Exercise Clause, by  discriminating against religious people and schools. Writing for the majority, John Roberts held that a state need not subsidize private education–but that once it decides to do so, “it cannot disqualify some private schools solely because they are religious.”

That is fair enough. It is also why privatization efforts like Indiana’s voucher program–which bleed resources from public education in order to send tax dollars to private schools–are so dangerous and socially divisive. In Indiana, some ninety percent of voucher students attend religious schools (schools that have not, by the way, improved the academic performance of those students.)

Plaintiffs freely acknowledged that the curricula of these religious schools is divisive and discriminatory.

One of the schools at issue in the case, Temple Academy in Waterville, Maine, says it expects its teachers “to integrate biblical principles with their teaching in every subject” and teaches students “to spread the word of Christianity.” The other, Bangor Christian School, says it seeks to develop “within each student a Christian worldview and Christian philosophy of life.”

The two schools “candidly admit that they discriminate against homosexuals, individuals who are transgender and non-Christians,” Maine’s Supreme Court brief said.

Justice Elena Kagan wanted to know why taxpayers should fund “proudly discriminatory” schools. The answer, evidently, is that six judges on this Supreme Court believe that when discrimination is required by Christian theology, it is entitled to special deference.

I somehow doubt that a Satanic school–or even a Muslim or Jewish one– would receive that same deference….



Cost Of Doing Business

Politico recently reported on a proposed law in Maine that would tax food wrappers. Before you react (either by yawning or rolling your eyes), consider the likely motive for imposing such a tax, and the potential implications.

Maine’s bill is an effort to recoup at least some of the costs governments incur when recycling tons of packaging waste. Managing America’s trash is expensive, its costs continue to escalate, and a significant percentage of those costs are paid with tax dollars. 

According to the report,  business groups actually asked lawmakers to tax food wrappers and containers. Industry groups did emerge to oppose certain parts of the proposal–mainly, who would control the tax revenue and how it’s spent. Packagers and consumer brands wanted authority to manage the money and use it exclusively for recycling. Maine regulators and their allies in the Legislature wanted the revenues to reimburse municipalities for hauling waste to landfills, too.

The industry won that battle, and the bill–that has now passed– designated revenues for recycling. This legislation appears be the first of its kind in the country; it could give momentum to a broader push to curb plastic waste and rationalize a recycling system that is outdated and varies from town to town. 

What I find really hopeful, however, is that I see  this as an (admittedly small) step toward dealing with the serious challenges posed by  externalities.

As I have often noted, I am a proponent of markets and capitalism–properly understood and properly regulated. The usual description of a working–and workable–market is that it is characterized by transactions between willing buyers and willing sellers  who are each in possession of all  information relevant to the transaction. That description is an accurate depiction of the ultimate purchase and sale, but it elides other, equally important assumptions–including the assumption that the pricing of a good accurately reflects the costs of its manufacture plus a reasonable profit.

That assumption isn’t necessarily accurate.

If I am manufacturing widgets, and the process involves the use or creation of a pollutant, the cost of production–and the price charged to the consumer– should include the expense of properly disposing of that pollutant. If –instead of following the rules for such disposal– I dump my contaminated waste in the local river (where it will have to be cleaned up by adjacent municipalities) I can price my widgets more advantageously than widget manufacturers who follow the rules and pay to dispose of their waste properly.

In a properly operating marketplace, the price of goods will reflect the complete cost of their manufacture–the expense of raw materials, all costs of turning those raw materials into a salable item, and the associated expenses of marketing and packaging. Appropriate regulations are those aimed at preventing some companies from gaining unfair advantage by “offloading” a portion of what should be their costs onto unsuspecting taxpayers.

Properly operating markets benefit us all. What doesn’t benefit us are (1) markets in clearly inappropriate economic sectors, like health care, where there is a huge (and unbridgeable) disparity in information and urgency between the parties to a transaction, and (2) inadequately or improperly regulated markets that allow–or even encourage–companies to profit by cheating.  

The packaging issue being addressed in Maine isn’t an instance of cheating; technically, I doubt that the need to recycle packaging is even a true externality–at least, as economists would categorize it–but the need to recycle packaging waste clearly does impose a cost that is currently being covered by taxpayers rather than manufacturers.

Maine appears to be the first state to address the allocation of that expense, and it will be interesting to see how many other states (if any) follow suit. At the very least, efforts of this sort raise awareness of an issue that is all too easy to ignore.


Abuses of Power

For the past couple of months, I have been watching the political shenanigans in Wisconsin, Indiana, Ohio, Michigan, Maine and elsewhere with increasing disbelief, trying to figure out what has prompted such disdain for civility, democratic process and  individual rights.

In the latest bizarre twist from Wisconsin, the Governor and GOP leadership simply ignored an order of the federal court. The court had issued a stay of the law repealing collective bargaining rights, pending an evidentiary hearing on whether it had been passed in a manner consistent with the state’s open door law. The legislature could have abided by the order, or it could have held another vote, after proper notice. Instead, those in charge decided to thumb their noses at a court order.

The belligerent and tone-deaf Governor of Maine unilaterally decided to erase a mural that he didn’t like. It was on the walls of the state’s Department of Labor, and portrayed the history of the labor movement.

In Michigan, the Governor has proposed–and the legislative majority has apparently approved–a bill that gives him unprecedented, nearly dictatorial powers of the sort not seen in the United States (probably because those powers appear to conflict with our constitutional system of checks and balances).

In Indiana, the Republicans who now control both houses have been indulging in some of the most vindictive lawmaking we’ve seen. (A former student of mine who has been lobbying this session recently characterized the chamber as “the Hatehouse.”)  They are busily passing measures to marginalize gays, harass immigrants, and make it difficult if not impossible for women to control their own reproduction. (During arguments over the imposition of a three-day waiting period before women can obtain an abortion, a woman legislator asked that an exception be added for cases of rape; the sponsor angrily responded that such an exception would be a ‘major loophole’ because women would all claim to have been raped! The proposed amendment was then voted down.)

I could go on and on, unfortunately. But the larger question is: what is going on? What explains this epidemic of bullying?

I don’t know if I can explain the “why” of all this, but I think I can characterize the “what.”

One of the goals of this nation’s founders was memorably related by John Adams, who explained that the Constitution was intended to establish a nation of “laws, not men.” We would have a country where the rule of law trumped the exercise of raw power. No one was to be above the law, and the purpose of the law was to limit the ability of those in power to abuse that power. What we are seeing is what happens when people elected to office behave like thugs, using their positions for personal and political aggrandizement rather than for the common good.

The people elected in 2010 talk a lot about the constitution, but their actions betray their absolute ignorance of its central purpose.