Some Plaintiffs Are More Equal Than Others: The Supreme Court’s Redefinition of ‘Discrimination’
The cases decided this week highlight
a disturbing trend of labeling nearly any legal restrictions on religious conservatives (predominantly white Christians) as impermissible discrimination,
while ignoring even the most blatant evidence of discrimination against Muslims and people of color.
The Supreme Court’s decisions this week seem to reflect a
larger trend in public discourse of judging public
criticism of conservatives more harshly than
civil and human rights violations against vulnerable communities.
In four decisions issued near the end of the U.S. Supreme Court’s 2018 term, the Court offered wildly different accounts of the significance of, and its duty to redress, “discrimination” in U.S. law.
It is hard to avoid the conclusion that these differences are ideologically driven.
In the cases, the Court relied on a definition of “discrimination” that operates to
provide absolute protection to the religious right
while failing to guard the rights of religious minorities and people of color.
The cases—
Masterpiece Cakeshop v. Colorado Civil Rights Commission,
National Ins ute of Family and Life Advocates (NIFLA) v. Becerra,
Trump v. Hawaii, and
Abbott v. Perez
—appear to have little in common.
They span numerous issues: LGBTQ rights, reproductive health, voting rights, immigration, and free exercise of religion.
They also involve a wide variety of legal and cons utional claims, including arguments based on the Free Exercise Clause, Free Speech Clause, Establishment Clause, and Equal Protection Clause (respectively).
Nevertheless,
they all wrestle with, at least in part, questions regarding the meaning of “discrimination” and the judiciary’s responsibility to acknowledge, address, and remedy it.
Read together, these cases highlight a
disturbing trend of labeling nearly any legal restrictions on religious conservatives (predominantly white Christians) as impermissible discrimination,
while ignoring even the most blatant evidence of discrimination against Muslims and people of color.
This is not mere hypocrisy, but a tacit reframing of our cons utional values and protections.
In two cases involving religious opponents of marriage equality and abortion rights, the Supreme Court ruled that government bodies had violated the U.S. Cons ution by treating religious conservatives unfairly.
In Masterpiece Cakeshop, the Court found that the Colorado Civil Rights Commission had violated the Free Exercise rights of a baker, Jack Phillips, who refused to sell a wedding cake to a same-sex couple based on his religious beliefs.
As evidence, the Court relied primarily on one statement made by a member of the Commission,
who said: “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most de able pieces of rhetoric that people can use to—to use their religion to hurt others.”
The Supreme Court found the commission’s actions so improper that it set aside its judgment entirely
—meaning that Phillips faced no legal consequences for his actions.
This suggests that the Court is
willing to entertain claims of anti-conservative Christian bias in any case
where the state enforces civil rights law on a religious objector, even where no allegedly “biased” statements have been made.
In a second case, the Supreme Court similarly found evidence of government mistreatment of the religious right. NIFLA v. Becerra considered a Free Speech Clause challenge to a California health law requiring certain pregnancy centers to notify patients if they were unlicensed, and requiring licensed pregnancy centers to notify patients that California provides free or low-cost reproductive health services.
The Court determined that the law restricted speech based on its content, and therefore posed “the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.”
the Court’s opinion strongly implied that California’s real intent in passing the law was not protecting patient health but rather discriminating against the unpopular speech of a minority group—anti-choice Christians.
Perhaps most outrageously, Justice Thomas condemned the law by stating that “[t]hroughout history, governments have ‘manipulat[ed] the content of doctor-patient discourse’ to increase state power and suppress minorities,” citing China’s Cultural Revolution and Nazi Germany.
The Supreme Court cited a law’s under-inclusiveness (the law did not apply to all health centers) in NIFLA as damning evidence that California sought not to protect patient health, but to suppress the speech of anti-choice clinics.
In two other cases this week, however, the Court was far more skeptical of discrimination claims brought by racial and religious minorities.
In cases addressing Trump’s Muslim ban and a claim of racial gerrymandering,
the Court set a much higher standard for finding evidence of uncons utional discrimination
than it had for claims brought by anti-choice groups or white conservative Christians.
In Tuesday’s Trump v. Hawaii decision, the Court upheld President Donald Trump’s travel ban in the face of an Establishment Clause challenge, despite
ample evidence that it was passed with the discriminatory intent of demeaning Muslims and preventing them from entering the country.
the Court acknowledged but deemed essentially irrelevant the president’s numerous statements, publications, and tweets evidencing the Islamophobic animus motivating the ban.
Finally, in Abbott v. Perez, the Court found no evidence of an Equal Protection Clause violation in a Texas gerrymandering case.
The Supreme Court overturned this decision, finding that “when all the relevant evidence in the record is taken into account,
it is plainly insufficient to prove that the 2013 Legislature acted in bad faith and engaged in intentional discrimination.”
According to the Supreme Court, this analysis of “taint” was inappropriate
(never mind that the Court engaged in a similar inquiry in Masterpiece Cakeshop, noting that the commissioner’s allegedly biased comment had never been officially censured by the commission or the courts).
In a scathing dissent, four justices argued that the majority had deliberately ignored significant evidence of the Texas legislature’s intent to suppress Latinx voting power.
In these four cases, spanning four different cons utional rights,
a pattern is clear:
The Supreme Court has been willing to zero in on minor evidence, such as stray comments,
in order to find that the government is unfairly targeting the (white, Christian) religious right in a way that is not just untoward, but uncons utional.
In doing so, it has undermined the enforcement of health and civil rights laws.
At the same time, it has ignored meticulously collected evidence of a state’s decades-long history of voter suppression against people of color.
And it has also—perhaps most shockingly—chosen to consciously overlook the sitting president’s clear and virulent animus towards Muslims.
As should be abundantly clear after this term,
all the more so in light of Justice Kennedy’s retirement, the courts—or at least
this Court— will not save us from discrimination.
At least not for the communities who need it most.https://rewire.news/article/2018/06/...d3ee-112016197
in short, White Christians are More Equal Than Others.
I expect in overturning Wade, etc, the misogyny will become more obvious that SCOTUS5 is biased toward
White MALE Christian Supremacy
So if you aren't white, male, Christian, SCOTUS (and the Repugs' other Federal ideological/illegal judges) will screw you over
"Should Trump get his pick, a new conservative justice is likely to
have an impact on reproductive rights for decades, with
CNN’s Jeffrey Toobin predicting that
abortion will be illegal in 20 states within 18 months.
Gun control will also be hit,
while LGBTQ rights — including the right to marry — face devastation."
The New York Daily News needed only three words for its Thursday cover focusing on Supreme Court Justice Anthony Kennedy’s retirement:
“We Are F*#%’D.”
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