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.

[Photo: Neil Gorsuch and Anthony Kennedy stand next to each other.]
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. Eric Thayer / Getty

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 Institute 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 constitutional 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 constitutional 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. Constitution 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. Phillips argued that his religious and free speech rights gave him a right to ignore the state anti-discrimination law. Importantly, the Court’s opinion in Masterpiece declined to endorse the constitutional exemption from anti-discrimination law that Phillips sought. Nevertheless, it held that the commission had violated Phillip’s religious liberty rights by tainting their deliberations of his case with anti-religious bias.

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 despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

While based on historical facts, the Supreme Court labeled this statement disparaging, hostile, and “inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.” 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.

Even more troublingly, the Court subsequently remanded a similar civil rights case—Arlene’s Flowers Inc. v. Washington—for consideration in light of its decision in Masterpiece, even though there was no evidence in this case of religious hostility. 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 law would have helped to protect patients from anti-choice “crisis pregnancy centers,” which pose as reproductive health clinics while providing false and misleading information intended to dissuade patients from seeking abortion.

In a majority opinion authored by Justice Clarence Thomas, the Court found that the law was likely to be held unconstitutional. 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.” It deemed one part of California’s law to be “[s]peaker-based,” which ran “the risk that ‘the State has left unburdened those speakers whose messages are in accord with its own views.’” In other words, 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.  This reference was particularly troubling considering how Justice Kennedy had, just a week earlier in the Masterpiece case, harshly denounced the Colorado Commissioner’s statement referencing the religious justifications for Nazi anti-Semitism and slavery.

The majority opinion in Becerra did not go so far as to expressly label the California law discriminatory, stating only that there were “serious concerns that [the requirements] discriminate based on viewpoint.” Four justices, however, wrote a separate concurrence to “underscore that the apparent viewpoint discrimination here is a matter of serious constitutional concern.” The concurrence continues, “[T]he history of the Act’s passage and its underinclusive application suggest a real possibility that these individuals were targeted because of their beliefs.”

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 Masterpiece, the Court latched on to relatively thin evidence to find that the Colorado commission had unfairly disfavored a man who denied services to same-sex couples. 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 unconstitutional 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 Establishment Clause, at least in theory, prohibits the government from favoring or disfavoring a particular religion or religious group—for example, by prohibiting certain faith groups from holding office or expressing official support for Christianity.

In upholding the policy, Court first determined that as a policy involving immigration and national security, the ban was not entitled to the same level of constitutional review as other government actions that are arguably discriminatory. Rather, the Court stated, it should be upheld “so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds”—in other words, if there was some plausible (even if unlikely) non-discriminatory reason for the ban.

Thus, the Court acknowledged but deemed essentially irrelevant the president’s numerous statements, publications, and tweets evidencing the Islamophobic animus motivating the ban. Choosing to defer to the president in matters involving “sensitive and weighty interests of national security and foreign affairs,” the Court was satisfied that “the Government has set forth a sufficient national security justification” for the policy. As articulated in Justice Sonia Sotomayor’s powerful dissent, the majority opinion, written by Chief Justice John Roberts, willfully ignored that the ban was motivated by “impermissible discriminatory animus against Islam and its followers” as well as “the pain and suffering [it] inflicts upon countless families and individuals.”

Finally, in Abbott v. Perez, the Court found no evidence of an Equal Protection Clause violation in a Texas gerrymandering case. The history and facts of this case are quite complicated; in brief, a group of voters claimed that the Texas legislature had engaged in intentional racial discrimination when it adopted a redistricting plan and maps in 2013 that were based on an earlier 2011 plan that had been struck down in court. The voters claimed that the original 2011 plan was clearly adopted to suppress the voting power of people of color, and that the later plan adopted and continued this illicit intent. A three-judge District Court panel unanimously agreed, and held that the 2013 redistricting “intentionally furthered and continued the existing discrimination in the plans.”

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.” The opinion, written by Justice Samuel Alito, particularly criticized the lower court’s finding that “[t]he discriminatory taint” of the 2011 plans “was not removed … because the Legislature engaged in no deliberative process to remove any such taint, and in fact intended any such taint to be maintained but be safe from remedy.” 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 constitutional 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 unconstitutional. 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.

The Court’s decisions 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. Recently, numerous prominent news outlets, writers, and other public personas vociferously condemned a restaurant’s refusal to serve Sarah Huckabee Sanders and protests against Kirstjen Nielsen, seemingly ignoring (or at least underplaying) their significant roles in the administration’s abominable immigration policies. Similarly, the Court’s recent opinions treat nearly any restriction or criticism of actions taken by religious conservatives as intolerable, while glossing over government acts of Islamophobia and voter suppression.

The right’s longstanding efforts to position its members as the victims rather than the perpetrators of discrimination has been exceptionally successful, and this year’s Supreme Court docket highlights the way in which this reframing of “discrimination” has affected a sweeping range of constitutional rights. 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.