Has common sense descended upon the Supreme Court? Even its liberal wing?
The court issued two unanimous rulings today that will have some significant impact, although only one provides a final resolution to its issue. Let's start with the other ruling in Ames v Ohio Dept of Youth Services, in which Marlean Ames appealed to have her discrimination claim revived under Title VII of the Civil Rights Act. She claimed that the Ohio agency discriminated against her in employment because she was a heterosexual. A lower court had dismissed it by claiming that so-called majority complainants needed a higher evidentiary standard to bring such a claim.
A unanimous court reversed that claim, in an opinion written by ... Justice Ketanji Brown Jackson. No, really, and the impact of this decision could be massive, as NBC News notes:
The unanimous ruling could make it easier in some parts of the country for people belonging to majority groups to bring such “reverse discrimination” claims. It overturns precedent in some lower courts that says someone from a “majority group” has to meet a higher bar than someone from a minority group for a case to move forward.
Marlean Ames sued the Ohio Department of Youth Services under Title VII of the Civil Rights Act, which prohibits sex discrimination in the workplace, after a lesbian woman obtained a promotion she had applied for. She was later demoted, and her old position was taken by a gay man.
Writing for the court, Justice Ketanji Brown Jackson said the test is “not consistent with Title VII's text or our case law construing the statute."
First off, let's dispense with the term "reverse discrimination." It's an oxymoron. These are cases of discrimination, full stop. If someone's sexual preferences are the basis for employment decisions, that violates Title VII, and the same is true for ethnicity, sex, religion, and so on. Discrimination is discrimination, and the very notion that certain classes of people within those categories have a higher evidentiary standard than others is itself discriminatory.
The text makes that clear even to Justice Jackson:
As a textual matter, Title VII’s disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs. Rather, the provision makes it unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1) (emphasis added). The “law’s focus on individuals rather than groups [is] anything but academic.” Bostock v. Clayton County, 590 U. S. 644, 659 (2020). By establishing the same protections for every “individual”—without regard to that individual’s membership in a minority or majority group—Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.
Justice Clarence Thomas wrote a lengthy concurrence (joined by Justice Neil Gorsuch) expressing his delight at the unanimity of this decision, but wrote extensively on how it would not have been necessary without previous "judicial lawmaking":
I join the Court’s opinion in full. I write separately to highlight the problems that arise when judges create atextual legal rules and frameworks. Judge-made doctrines have a tendency to distort the underlying statutory text, impose unnecessary burdens on litigants, and cause confusion for courts. The “background circumstances” rule—correctly rejected by the Court today—is one example of this phenomenon. And, the decision below involves another example: The Sixth Circuit analyzed Ames’s Title VII claim under the three-step framework developed by this Court in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973). As with the “background circumstances” rule, the McDonnell Douglas framework lacks any basis in the text of Title VII and has proved difficult for courts to apply. In a case where the parties ask us to do so, I would be willing to consider whether the McDonnell Douglas framework is a workable and useful evidentiary tool.
So now discrimination is finally just discrimination, without reverses or crazy-Ivans, or any other kind of rhetorical knot-twisting. Ms. Ames still has to argue her case in court, but at least now she has that chance -- and one suspects that the state of Ohio has an opportunity to settle the case before a jury gets to hear it.
A similarly united court struck down a Wisconsin tax judgment on Catholic groups providing social services to their wider communities. The state had decided that these groups did not warrant a religious exemption because their work did not primarily involve evangelization specific to their faith. In a 9-0 decision written by Justice Sonia Sotomayor, the court ordered Wisconsin to re-read the First Amendment:
The Supreme Court on Thursday ruled in favor of Catholic Church-affiliated charitable groups, saying they were wrongly denied religious exemptions from a Wisconsin tax that funds unemployment benefits.
The justices ruled unanimously that the state's decision unlawfully discriminated against the groups on the basis of religion under the free exercise clause of the Constitution's First Amendment.
The court rejected a Wisconsin Supreme Court decision that said that the groups operating under the Catholic Charities Bureau of the Diocese of Superior were not sufficiently religious in purpose. The state already provided exemptions for religious institutions.
"There may be hard calls to make in policing that rule" of neutrality toward religious denominations, Sotomayor wrote, "but this is not one." By insisting that the religious tax exemption only applies to those organizations with explicit evangelization and narrowness of service, Wisconsin explicitly violates the rights of Catholics to offer services to wider communities without conditioning it on conversion:
This case involves that paradigmatic form of denominational discrimination. In determining whether petitioners qualified for the tax exemption under §108.02(15)(h)(2), the Wisconsin Supreme Court acknowledged that petitioners are controlled by a church, the Roman Catholic Diocese of Superior, thereby satisfying one of the exemption’s two criteria. 411 Wis. 2d, at 22, 3 N. W. 3d, at 676. The court’s inquiry instead turned on whether petitioners are “operated primarily for religious purposes.” Wis. Stat. §108.02(15)(h)(2); see 411 Wis. 2d, at 22, 3 N. W. 3d, at 676. On that criterion, the court recognized that petitioners’ charitable works are religiously motivated. Id., at 34, 3 N. W. 3d, at 682. The court nevertheless deemed petitioners ineligible for the exemption under §108.02(15)(h)(2) because they do not “attempt to imbue program participants with the Catholic faith,” “supply any religious materials to program participants or employees,” or limit their charitable services to members of the Catholic Church. Id., at 35, 3 N. W. 3d, at 682–683. Put simply, petitioners could qualify for the exemption while providing their current charitable services if they engaged in proselytization or limited their services to fellow Catholics.
Petitioners’ Catholic faith, however, bars them from satisfying those criteria. Catholic teaching, petitioners say, forbids “‘misus[ing] works of charity for purposes of proselytism.’” Brief for Petitioners 10 (quoting Directory for the Pastoral Ministry of Bishops “Apostolorum Successores” ¶196). It also requires provision of charitable services “without making distinctions ‘by race, sex, or religion.’” Brief for Petitioners 7 (quoting App. to Pet. for Cert. 431a). Many religions apparently impose similar rules prohibiting proselytization or religious differentiation in the provision of charitable services. See Brief for Religious Liberty Scholars as Amici Curiae 12–13 (discussing beliefs in Judaism, Islam, Sikhism, and Hinduism). Others seemingly have adopted a contrary approach. See id., at 12 (discussing practices of some Protestant denominations).
Wisconsin’s exemption, as interpreted by its Supreme Court, thus grants a denominational preference by explicitly differentiating between religions based on theological practices.
Both Thomas and Jackson wrote extensive concurrences. Jackson's conclusion is worth noting for its recognition of the absurdity in Wisconsin policy:
Church-related nonprofit employers care for the sick, feed the hungry, and improve the world in countless ways. Most do this—no doubt—for religious reasons. All do this thanks to their employees’ labor. As I read §3309(b)(1)(B), evaluating whether a church-affiliated nonprofit “operate[s] primarily for religious purposes” is not a matter of assessing the sincerity or primacy of its religious motives. Instead, as with so many other interpretive issues, determining what the religious-purposes exemption means involves attempting to discern what Congress was trying to achieve. Here, Congress sought to extend to most nonprofit workers the stability that unemployment insurance offers, while exempting a narrow category of church-affiliated entities most likely to cause significant entanglement problems for the unemployment system—precisely because their work involves preparing individuals for religious life. It is perfectly consistent with the opinion the Court hands down today for States to align their §3309(b)(1)(B)-based religious-purposes exemptions with Congress’s true focus.
Indeed, Wisconsin went out of their way to punish Catholic social services charities for their generosity to the greater community. The state of Wisconsin should be ashamed of itself. And today, every member of the Supreme Court deserves a pat on the back. Well done for ordered liberty, Justices.
