For the past several decades, the U.S. Supreme Court has been on a crusade to end the “special status” of minority groups.  While it is abundantly clear that the purpose of the Civil War Amendments and the various Civil Rights Acts were to help, first African-Americans, and then women, achieve equality, the current majority of the U.S. Supreme Court want to act as if the law requires a “color-blind” (and implicitly a “gender-blind”) approach in which any effort by the government (or private institutions) in taking steps to assure that minority and women have a chance at success will be struck down.   Simply put, African-Americans, Hispanics, and women are no longer going to benefit from a “most-favored nation” status in civil rights laws.  On the other hand, the favored group of the Republican Party (White evangelicals) are entitled to such status.

This week saw the new legal order exemplified in three opinions.

First, and most obvious, was the decision in “Students” for “Fair” Admissions, Inc, vs. President and Fellows of Harvard College.  While the outcome of the case is not surprising as an exercise in raw power by the six Republicans on the Supreme Court, the bottom line is the equal protection clause and Title VI ban any attempt to help African-Americans overcome centruries of discrimination by giving them a “plus” in consideration for spots at “selective” universities and professional schools.  The opinion does leave a limited exception in recognizing that these universities use essays as part of the admissions process and, of course, free speech would bar the government from implementing a ban on references to the racial background of the applicant in these essays.  The Supreme Court directs, however, that in considering these essays, admissions offices should solely consider how these essays reflect barriers that the applicant has overcome or other aspects of the applicant’s character.  Of course, nothing in the majority opinion bans giving a plus to “legacy” candidates even if legacy candidates will be primarily composed of wealthy whites.  The one positive aspect of these opinions is that, like with last year’s abortion decision, this decision costs Republicans their wedge issue.  For the past fifty years, affirmative action has placed minorities against those with lower levels of white privilege for the last spots in government program and kept both groups from focusing on the slots that were reserved for those with Privilege.  Whether, with affirmative action no longer around, the powers that be in the Republican Party can keep folks from taking a look at the preferences given to the children of alumni and wealth donors that take aways spots from both middle class whites and minorities who actually earned a slot at the top colleges will be a big question going forward.

The one thing that may become an issue in the short term is whether this decision marks the beginning of the end for all-women colleges.  In the past, the courts had been a key instrument in forcing all-men’s colleges to begin admitting women.  While many all-women’s colleges have gone coeducational for financial reasons, the courts did not force all-women’s colleges to admit men.  This decision seems to be one more indication that the courts will no longer treat minorities (and women) “better” than whites and men.  So, if all-men’s colleges are not allowed, it seems that there is a very significant chance that some conservative judge will soon hold that all-women’s colleges are also not allowed.

Meanwhile, there were two decisions that gave special treatment to those with religious objections.  The easy case (as reflected by the unanimous decision) was Groff vs. DeJoy.  This opinion concerned what an employer (here the postal service) has to show before it is allowed to deny a religious-based accommodation to an employee.  Because Title VII of the Civil Rights expressly covers discrimination based on religion, it is clear that a policy that implicitly excludes practicing members of a given religion from getting a job is a violation of Title VII.   But Title VII also contains an exception for bona fide occupational qualifications.  Thus, for example, it is hard to imagine a circumstance in which a practicing Hindu could claim that the requirement that workers at a beef processing plant work with cow carcasses somehow qualified as an unlawful employment practice because working with cow carcasses is the essence of the job.  On the other hand, what if a Hindu at a meat processing plant insisted that he had to be assigned to the “pork” portion of the facility and that it was unlawful to require him to work in the “beef” portion of the facility?

Previously, in 1977, the U.S. Supreme Court said that the test for whether an employer had to accommodate the religious practices of an employee was whether the burden on the employer was more than de minimis.  Going back to our meat processing plant, given the likely differences between breaking down a cow and breaking down a pig, it seems likely that most meat processing facilities would have a “beef” team, a “pork” team, and a small “swing” team (to fill in for those out sick or on vacation as a needed by the beef and pork teams).   Thus, hiring applicants for a particular team seems like something that would be normal, and it’s no burden to let Hindus insist that they are only interested in being hired for the pork team and Muslims insist that they are only interested in being hired for the pork team.  But other accommodations are more burdensome.  In the present case, for decades, if you took a job with the post office, you knew that you would not have to work on Sunday.  For ultra-evangelical Christians who stringently interpret the biblical injunction against working on the sabbath, working for the postal service was not a problem.  But, recently, the postal service has entered into contracts to make commercial deliveries on Sundays (with Amazon being the best known of these arrangements).  And, thus, the expectation has arisen that postal employees will have to, if not every week then periodically, work on Sunday.  The plaintiff in this case objected, on religious grounds, to being forced to take part in the Sunday work rotation.  The lower courts, applying the traditional test, held that being forced to accommodate this employee would be more than a de minimis burden.

In the majority opinion, by Justice Alito, the U.S. Supreme Court noted that the original opinion did not actually adopt a de minimis test.  Instead, that “test” was simply one of the explanations of why the worker’s claims failed in that case.  Relying on other language in that opinion, the majority finds that the real test is whether the burden of accommodation is “substantial.” In adopting this test, the U.S. Supreme Court notes that what is substantial depends, in part, on the size of the business — what would be a substantial reduction of profits due to added cost for a 200-employee business might be a small loss for a business with 10,000 employees.  The U.S. Supreme Court also noted that an employer (and a court looking at the employer’s decision) needs to consider alternative ways to accommodate the employee.  It is not enough to decide that the employee’s proposed accommodation would impose a substantial cost if there are other workable alternative that would accommodate the employee’s religious objection.

The last decision of note is 303 Creative LLC vs. Elenis.  The issue in this case is whether civil rights laws can compel a person to provide services to LGBTQ individuals if that service involves speech.  Prior to this case, there had never been a religious exemption to complying with the “public accommodations” portion of state or federal civil rights laws.  If you provided a business to the public, you had to serve all customers.  Certainly back in the early days of Title II, there were individuals who had religious objections to interracial marriages.  But the U.S. Supreme Court did not take any of the cases in which those objections were made.  But today, this Court thinks that religious objections to same-sex marriages are different than religious objections to interracial marriages.

This particular case involves website design.  It is debatable whether the business is actually a real business or if the plaintiff has been asked to “design” a website for a same sex marriage.  For this Court, it is enough that the plaintiff says that she wants to have that business and that she would refuse any request to provide a website for a same sex couple seeking to have a website for their wedding which might make her subject to penalties imposed under Colorado’s civil rights laws.  Nominally, this case is a free speech case.  And the majority position has some appeal from a near absolutist interpretation of the Free Speech Clause if you accept the majority’s framing of the speech involved.  If you view a website as the speech of the designer, then the plaintiff is being compelled to give a message with which they disagree.  On the other hand, if you see setting up the basics of a website as a mere service with the “speech” aspect coming from the content posted by the happy couple, then the free speech issue disappears.  Not surprising, given this Court’s recent practices, they adopted the framing that makes the religious objection real just as, in the “contraceptive mandate” cases the Supreme Court took the view of the insurance mandate as requiring the employer to provide specific coverages rather than the view that the mandate simply required the employer to provide health care coverage with the employee choosing what to use that coverage for.

There may be a small number of services that actually do “express” support for the couple getting married.  If a songwriter was asked to write a special song for the couple, maybe an exemption from civil rights laws would be appropriate.  But designing a cake, or a floral arrangement, or renting a room for the reception, or designing a website does not endorse what the customer is doing.  The speech involved in this case is less than the speech that a doctor must give a patient.  But the courts have upheld such speech requirements for doctors, even when the compelled speech is not supported by medical science as long as the compelled speech furthers conservative views.  (Of course, the opposite conclusion is true if it is Evangelical medical personnel being compelled to give medically accurate information that supports a liberal view).  In short, the opinion in 303 Creative simply expresses the reality of this Court that it will twist the Free Exercise Clause and the Free Speech Clause to give the “preferential” legal status that used to belong to the victims of discrimination (who are no longer entitled to any special remedial treatment) to Evangelicals.

The silver lining, if there is any silver lining in this batch of decisions, is that Evangelicals are a declining segment of the population and protecting the unreasonable misinterpretation of the Bible held by an aging population is a formula for electoral defeat.  It may take a decade or so before the U.S. Supreme Court is ready to enforce the Equal Protection Clause to protect the real victims of discrimination again, but that day will come.