For the second time in a week, the Supreme Court signaled on Monday that it may no longer be a friendly place for victims of discrimination on the basis of sexual orientation.
The Court announced Monday that it will not hear Evans v. Georgia Regional Hospital, a surprising decision given that the question presented in Evans — whether existing law banning discrimination “because of … sex” encompasses discrimination based on sexual orientation — is a subject of disagreement among federal appeals courts.
According to the Court’s own rules, the justices are especially likely to hear cases where “a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter.” Maintaining the uniformity of federal law is one of the primary functions of the Supreme Court.
As a general rule, it is dangerous to overread the significance of the Court’s decision not to hear a particular case. Such denials of review are not decisions on the merits, and can sometimes reflect a quirky problem with an individual case — not that the justices are uninterested in resolving the issue presented by that case.
But the Court’s non-decision in Evans follows last week’s surprising oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, where Justice Anthony Kennedy — the author of the Supreme Court’s landmark marriage equality decision — appeared unwilling to let the law treat homophobia as an evil akin to racism, sexism, or other forms of invidious discrimination.
Taken together, the two events suggest that Kennedy, who believes that all people have a fundamental right to marry, is not particularly interested in abolishing discrimination on the basis of sexual orientation writ large. Without Kennedy, moreover, the project of equality for the LGBTQ community is dead in the water at the Supreme Court.
A year-and-a-half ago, Kennedy’s marriage equality opinion in Obergefell v. Hodges seemed to suggest that gay rights litigators still had many significant victories ahead of them. Obergefell described sexual orientation as an “immutable nature.” And it highlighted the long history of harsh discrimination against people with same-sex attractions both by the government and private actors.
This language in the Obergefell opinion seemed significant because past Supreme Court decisions established that when a group has historically faced discrimination that bears “no relation to ability to perform or contribute to society,” and especially when they face such discrimination because of an “immutable” trait that they cannot control, any law which discriminates against that group must be treated with a great deal of constitutional skepticism.
A major purpose of the Fourteenth Amendment is to eradicate institutionalized racism and government discrimination that is similar in character to racism, and Kennedy’s Obergefell opinion strongly signaled that discrimination on the basis of sexual orientation meets this test.
Perhaps emboldened by these signals in Obergefell, the United States Court of Appeals for the Seventh Circuit held last April that the existing ban on sex discrimination by employers prohibits discrimination on the basis of sexual orientation. In an 8-3 decision joined by several Republican-appointed judges, the Seventh Circuit explained in Hively v. Ivy Tech Community College that discrimination against a lesbian employee is itself a form of sex discrimination. Being a woman attracted to women “represents the ultimate case of failure to conform to the female stereotype.”
On the day Hively was handed down, there was good reason to believe that the Supreme Court would follow the Seventh Circuit’s lead. Kennedy’s opinion in Obergefell suggested that he believes that discrimination on the basis of sexual orientation is both morally and legally similar to sexism. And eliminating private discrimination against gay, lesbian, and bisexual employees was the next logical step for LGBTQ rights litigators after their victory for marriage equality.
Now, however, that project is stalled. The Supreme Court’s decision not to take the Evans case leaves Hively in place, but it also leaves in place decisions in several other federal judicial circuits holding that it is perfectly legal to fire someone because they are gay. Kennedy’s questions in the Masterpiece Cakeshop case, moreover, suggest that he may even be willing to roll back existing protections for such workers.
At last Tuesday’s oral argument, Kennedy was outraged by a Colorado state commissioner who said — accurately — that “freedom of religion and religion has been used to justify all kinds of discrimination throughout history.” He also accused the state of not being “tolerant” or “respectful” of the religious beliefs of a baker who refused to serve a same-sex couple in violation of Colorado’s anti-discrimination law.
Kennedy, in other words, appeared to think that laws banning discrimination on the basis of sexual orientation must bend to the will of people who claim a religious justification for their prejudices — or, at least, that state officials who wish to enforce these laws must walk on eggshells to avoid offending people on the religious right.
Rather than extending civil rights protections to gay, lesbian, and bisexual workers throughout the country, Kennedy now appears more likely to roll back existing protections in states that already ban discrimination on the basis of sexual orientation. The momentum towards equality is currently paused, but it may soon move in reverse.