July 24, 2020

U.S. Supreme Court Has Blockbuster Term

by Carly Edelstein, Ohio Public Defender

The COVID-19 pandemic forced U.S. Supreme Court oral arguments to be held remotely and delayed decisions until the second week of July, making this term one for the ages. The substance of the term was also groundbreaking – what SCOTUS-watchers would call a “Blockbuster” term, addressing issues like abortion rights, religious freedom, faithless electors, Deferred Action for Childhood Arrivals, the president’s tax returns, and contraceptive coverage under the Affordable Care Act.

I’m going to touch on two themes from the term.

First, the balancing of civil rights protections and religious liberties.

In a decision that shocked most, Justice Gorsuch wrote for the majority in Bostock v. Clayton County that Title VII of the Civil Rights Act, which prohibits discrimination in the workplace “because of sex,” applies to sexual orientation and gender identity discrimination. The majority explained that it is impossible to discriminate on the basis of sexual orientation or gender identity without also discriminating on the basis of sex. This sweeping decision almost certainly applies not only in the employment context, but also in K-12 schools and universities that are subject to Title IX of the Education Amendments Act. In a dissent, however, Justice Alito warned that the Bostock decision would have huge consequences for religious liberties—perhaps foreshadowing his decision three weeks later in Our Lady of Guadalupe School v. Morrissey-Berru.

In Our Lady of Guadalupe, Justice Alito wrote for the majority, explaining that the ministerial exception, which bars “ministers” from suing churches and other religious institutions for employment discrimination, extends to all teachers in those settings, even if they are not ordained ministers. So while Bostock dramatically expanded LGBTQ rights in the workplace, Our Lady of Guadalupe constricted civil rights protections in religious institutional settings. Certainly we can expect to see more cases down the road addressing the fragile intersection between civil rights protections on the one hand and religious liberties on the other.

And the second theme: the Court confirmed that while the executive branch has expansive power, it is not unfettered.

In Department of Homeland Security v. Regents of the University of California, the Court held that the Trump Administration acted improperly when it attempted to terminate the Deferred Action for Childhood Arrivals (DACA) program. In a similar vein, the Court held last term in Department of Commerce v. New York that the Trump Administration’s justification for adding a citizenship question to the census was pretext.

Both of these cases made huge waves in the media and were celebrated by some and lamented by others. Neither told us whether the Trump Administration will ultimately end DACA or put a citizenship question on the census, but they do stand for an important check on executive authority: when the government acts, it must provide a reasoned explanation about the actual basis for the action. Both cases were sent back to the lower courts. While the Trump Administration has indicated that it will no longer pursue the census citizenship question, it certainly has another opportunity to comply with the Administrative Procedure Act and provide sufficient reasoning for terminating

The Court confirmed that while the executive branch has expansive power, it is not unfettered.