While You Protest, the Supreme Court Is Poised to Pummel Your Rights

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Analysis Law and Policy

While You Protest, the Supreme Court Is Poised to Pummel Your Rights

Jessica Mason Pieklo

The Supreme Court is set to radically alter immigration, abortion rights, and employment discrimination law—all in a matter of weeks.

For full coverage of June Medical Services v. Russo, check out our Special Report.

It’s shaping up to be one hell of a summer as the country wrestles with Depression-era unemployment levels, nationwide police brutality protests, and state leaders reopening businesses in the middle of a pandemic that shows no signs of abating.

These wild and unpredictable times are about to become even wilder once the U.S. Supreme Court decides the following cases, potentially altering the landscape of LGBTQ rights, immigration, abortion rights, family planning funding, and government funding for religious schools. 

Workplaces could become a lot less equal 

Sex. Abortion. Parenthood. Power.

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Can your boss fire you for being gay or transgender? Any day now the Supreme Court will release its opinion in a series of cases that answer that very question. 

At issue in the three cases is Title VII of the Civil Rights Act of 1964. More specifically, these decisions will determine whether Title VII’s prohibition on discrimination “because of sex” includes discrimination on the basis of a person’s sexual orientation or gender identity.

When the Roberts Court heard oral arguments in the cases in October, the justices appeared largely split along ideological lines. If civil rights advocates have any hope of succeeding, they are going to need the vote of at least one of the Court’s conservatives, with Justice Neil Gorsuch being the likely candidate. He offered signs that he was possibly sympathetic to arguments that Title VII protects LGBTQ workers.

I remain skeptical, however, that any of the Supreme Court’s conservatives will side with workers in these cases.

The potential impact here is enormous. Workers in 25 states have no laws protecting them from employment discrimination if they are gay or transgender. In addition to facing discrimination in hiring and firing, LGBTQ workers can experience significant wage disparities. A decision from the Supreme Court finding that federal law does not protect LGBTQ workers will exacerbate those disparities and leave workers with a patchwork of job protections that are dependent on what state, and in some instances what city, they happen to live in. 

The Title VII cases aren’t the only major employment discrimination cases looming at the Supreme Court. Two California Catholic schools have asked the Court to rule that religious employers don’t have to comply with state or federal laws like Title VII that ban workplace discrimination. 

Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel involve what’s known as the “ministerial exemption” to anti-discrimination laws. The exemption is designed to preserve the distinction between church and state by recognizing that religious groups enjoy some constitutional freedom to select their own leaders and run their own affairs free from government interference.

But who is a minister, and just how far does that exemption reach? That’s what the Court is poised to decide. Both cases involve claims by former teachers that they were unlawfully fired. One teacher claims she was the victim of age discrimination, and the other says the school fired her because she had cancer, in violation of disability rights laws. The schools used the ministerial exemption to defend the firings. 

If the Supreme Court sides with the schools in these cases, it would greatly expand the ability of religious employers—including Catholic hospitals and universities—to fire and hire workers based on religious beliefs, regardless of whether a particular job is religious in nature. 

John Roberts could decide the fate of nearly 700,000 DREAMERs

The deportation status of nearly 700,000 people hangs in the balance, with the Supreme Court poised to decide if the Trump administration properly rescinded Obama-era protections for undocumented people brought to this country as children.

In September 2017, the Trump administration announced it was ending the Deferred Action for Childhood Arrivals (DACA) program and would begin deportation proceedings for those who had previously been spared under the program. Federal courts blocked those initial plans, ruling the administration did not offer sufficient justification for ending DACA.

Supreme Court conservatives have backed the Trump administration’s most racist policies, including its Muslim Ban, with Roberts providing the critical fifth vote to bless the administration’s actions. The DACA case is set to add another decision with devastating human consequences to Roberts’ tarnished legacy. 

Brett Kavanaugh’s first big abortion rights case could be devastating

The Supreme Court is set to decide its first abortion rights case since Justice Brett Kavanaugh joined the bench, and the stakes are predictably sky high.

In 2016, abortion rights advocates celebrated a historic win in Whole Woman’s Health v. Hellerstedt, when the Court declared that that abortion restrictions designed to advance the health and safety of a patient needed to be supported by evidence and couldn’t place a substantial burden on the patient seeking abortion care. That entire ruling, along with the ability of abortion providers to sue on behalf of their patients, now stands at risk in June Medical Services v. Russo, a case out of Louisiana that is a repeat of Whole Woman’s Health. I’m not kidding.

The principle difference between the two cases is that Whole Woman’s Health involved a challenge to a Texas abortion restriction, while June Medical Services is a challenge to that same restriction, but in Louisiana. The other difference between the two cases is that conservatives now have a majority on the Court thanks to Kavanaugh’s appointment. That’s left abortion rights advocates looking to Roberts as a potential swing vote in this case. And when it’s up to Roberts to rescue abortion rights, well, that’s never a good spot to be in.

A decision in Louisiana’s favor could not only usher in a whole new wave of bad-faith abortion restrictions, but could make it astronomically more difficult to challenge those restrictions in court. 

Trump’s attack on international family planning organizations 

You know it’s been a bananas year at the Court when a case involving international family planning and abortion barely makes the radar. But that’s just 2020’s vibe, I guess. 

In January 2017, Trump announced he was reinstating and expanding the “Mexico City Policy.” Also known as the “global gag rule,” the Mexico City Policy requires foreign non-governmental organizations to certify they will not “perform or actively promote abortion as a method of family planning” using non-U.S. funds as a condition for receiving U.S. family planning funds.

Think of it as the Republican effort to defund Planned Parenthood here in the United States. But on steroids. And global. In May, the Supreme Court heard arguments in a case that could determine whether the Trump administration can condition family planning funding on excluding abortion services and information. And given the fight over the Trump administration’s efforts to upend family planning programs here in the United States, a ruling in the global gag rule case could signal how the Court would decide challenges to those domestic defunding efforts as well. 

Yes, Virginia, we’re still fighting about birth control 

Why is it that it’s 2020 and we are still fighting about the birth control benefit in the Affordable Care Act? Is it because Republicans keep trying, and failing, to repeal the ACA altogether?

That’s my running theory, because there is no reason the Supreme Court should be wasting its time on attempts by the Trump administration to roll back the benefit while also sneaking in a massive expansion of employers’ abilities to raise “moral” objections to laws they don’t like. Yet here we are. If the Supreme Court gives the Trump administration’s efforts a thumbs up here, expect to see more regulatory carve-outs from the administration, as employers will test the limits of these new moral exemptions.

Don’t like single moms in the workplace? Believe the government has no authority to set a minimum wage? These are the kinds of arguments we could see in the future if the Trump administration gets its way here.

Religious schools could get a lot more government cash 

Montana is one of 37 states with a constitutional amendment barring taxpayer dollars from directly or indirectly going to religious schools. Known as “baby” Blaine Amendments, these state prohibitions are based on a similar federal ban introduced in Congress in 1875 by former U.S. House Rep. James Blaine (R-ME).

The federal ban failed to pass, but the “baby” Blaines swept across states as part of a wave of anti-Catholic sentiment. Religious conservatives have long sought to upend Blaine Amendments in the states and open up religious schools to taxpayer funding. Espinoza v. Montana Dept. of Revenue may finally give them their chance.