Supreme Court: Poised to ease burden on straights, scrutinize books in school

Long-time observers of the U.S. Supreme Court might have been wondering last Wednesday why the court would have spent its scarce oral argument time on an issue on which all sides already agree.

The case was Ames v. Ohio, in which a long-time female employee of Ohio's Department of Youth Services said she was denied a promotion and then demoted because she is straight. Her evidence was the fact that gay people got both of the jobs she wanted.

The legal issue February 26 was not whether someone at the Department discriminated against 60-year-old Marlean Ames because she was straight. And the issue was not whether laws prohibiting sexual orientation discrimination prohibit discrimination against heterosexuals. They do.

The question was a narrow but important one: Could the court require that an employee who was a member of a majority group —in this case, straight people— to jump through an extra hoop when pressing a claim of discrimination that typically affects minorities. Some federal appeals circuits have said yes, some have said no.

The Sixth Circuit U.S. Court of Appeal said yes, members of a majority group must meet an additional burden: "background circumstances." It based its conclusion on earlier precedents in the Sixth Circuit, noting that "background circumstances" are evidence "to support the suspicion that the defendant is that unusual employer who discriminates against the majority."

Ames, a long-time employee for the Ohio facility for young people convicted of felons, lost a promotion to one gay person, then had her old job given to another gay person. The supervisors who made those decisions were both straight.

The Sixth Circuit, ruling against Ames, said she failed to show any background circumstances or pattern of discrimination.

"Plaintiffs typically make that showing with evidence that a member of the relevant minority group (here, gay people) made the employment decision at issue, or with statistical evidence showing a pattern of discrimination by the employer against members of the majority group."

Title VII of the federal Civil Rights Act prohibits employment discrimination based on sex, and the Supreme Court, in Bostock v. Clayton, held that "sex" includes sexual orientation.

During arguments before the Supreme Court, Ames' attorney, Xiao Wang, and the U.S. Solicitor General's office, represented by Ashley Robertson, argued that Title VII applies equally to all plaintiffs, regardless of whether they are in the majority or a minority.

"The court of appeals applied a different and more difficult standard to

[Ames] because it considered her a member of the majority," said Robertson. "But Title VII draws no distinctions between plaintiffs based on their race, religion, sex, or other protected characteristic. That alone is reason to vacate the decision below...."

Ohio Solicitor General Elliot Gaiser said, "Ohio agrees it is wrong to hold some litigants to a higher standard because of their protected characteristics."

The rare agreement of both sides on such a crucial point prompted Justice Brett Kavanaugh to say, "So, all you want for this case is a really short opinion that says discrimination on the basis of sexual orientation —whether it's because you're gay or because you're straight— is prohibited, and the rules are the same whichever way that goes?"

"That's right," said Wang.

Most legal observers writing about the oral argument expressed confidence that the Supreme Court would rule for majority plaintiffs, like Ames, on this narrow question. But some said a ruling for Ames —and against requiring majority plaintiffs to satisfy an extra burden of proof— could lead to many more lawsuits claiming reverse discrimination.

In other Supreme Court news:

Books in the classroom: The high court has agreed to hear another LGBTQ+-related case this session: Mahmoud v. Taylor, about public schools requiring educational materials that acknowledge the existence of LGBTQ+ people. The case comes from Maryland and the Fourth Circuit U.S. Court of Appeals. The parents of three students filed a lawsuit against the Montgomery County Board of Education's policy of including LGBTQ+ storybooks for elementary school children. The Board policy does not allow parents to opt-out their children from reading the materials and does not agree to alert parents when such books are being read. The parent plaintiffs said the policy violates their First Amendment rights to free exercise of religion, free speech, and due process. A three-judge panel of the Fourth Circuit voted 2 to 1 against the parents to deny the parents' request for a preliminary injunction to stop use of the books. The panel majority said the parents failed to submit any evidence of how "simply hearing about other views... [can] necessarily exert pressure to believe or act differently than one's religious faith requires." The panel majority acknowledged that the parents might eventually be able to provide "sufficient evidence that an elementary-age child's exposure to the Storybooks and related conversations amounts to coercion." But at this preliminary stage, the Fourth Circuit, denied their request. In agreeing to hear the parents' appeal, the Supreme Court says it will determine whether "public schools burden parents' religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents' religious convictions and without notice or opportunity to opt out?" Oral argument is set for April 22.

Fight over AIDS grants: Chief Justice John Roberts on February 26 granted a request from the U.S. State Department to stay a district court order that required the Trump administration pay out grants awarded to 10 groups, including AIDS organizations, through the U.S. Agency for International Development (USAID). The Trump administration had ignored the lower court rulings to distribute the funding, as approved by Congress. The Supreme Court has not yet weighed in on whether to hear the Trump administration's appeal concerning the funding.

Drag company appeal rejected: The Supreme Court declined February 21 to hear an appeal from a drag theatrical group in Memphis. The group filed a lawsuit, Friends of George's v. Shelby County, to challenge the constitutionality of a Tennessee law banning drag shows performed where anyone under 18 might see them. The Sixth Circuit ruled only that the plaintiffs lacked standing to bring the legal challenge, said Abby Rubenfeld, a long-time LGBTQ+ legal activist in Nashville. The Supreme Court denied the Friends appeal on February 24.

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