Attorney & Court Information
The transcript of oral argument in Food Marketing Institute v. Argus Leader Media is available on the Supreme Court’s website; the transcript in Fort Bend County, Texas v. Davis is also available.
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The Supreme Court announced today that it will weigh in next term on whether federal employment discrimination laws protect LGBT employees. After considering a trio of cases — two claiming discrimination based on sexual orientation and the third claiming discrimination based on transgender status — at 11 consecutive conferences, the justices agreed to review them. Until today, the cases slated for oral argument next term had been relatively low-profile, but this morning’s announcement means that the justices will have what will almost certainly be blockbuster cases on their docket next fall, with rulings to follow during the 2020 presidential campaign.
In Altitude Express v. Zarda, the justices will decide whether federal laws banning employment discrimination protect gay and lesbian employees. The petition for review was filed by a New York skydiving company, now known as Altitude Express. After the company fired Donald Zarda, who worked as an instructor for the company, Zarda went to federal court, where he contended that he was terminated because he was gay – a violation of (among other things) Title VII of the Civil Rights Act of 1964, which bars discrimination “because of sex.”
The trial court threw out Zarda’s Title VII claim, reasoning that Title VII does not allow claims alleging discrimination based on sexual orientation. But the full U.S. Court of Appeals for the 2nd Circuit reversed that holding, concluding that Title VII does apply to discrimination based on sexual orientation because such discrimination “is a subset of sex discrimination.”
Altitude Express took its case to the Supreme Court last year, asking the justices to weigh in. In 2017, the justices had denied review of a similar case, filed by a woman who alleged that she had been harassed and passed over for a promotion at her job as a hospital security officer in Georgia because she was a lesbian. However, that case came to the court in a somewhat unusual posture: Neither the hospital nor the individual employees named in the lawsuit had participated in the proceedings in the lower courts, and they had told the Supreme Court that they would continue to stay out of the case even if review were granted, which may have made the justices wary about reviewing the case on the merits.
Altitude Express’ case will be consolidated for one hour of oral argument with the second case involving the rights of gay and lesbian employees: Bostock v. Clayton County, Georgia. The petitioner in the case, Gerald Bostock, worked as a child-welfare-services coordinator in Clayton County, Georgia. Bostock argued that after the county learned that he was gay, it falsely accused him of mismanaging public money so that it could fire him – when it was in fact firing him because he was gay.
Bostock went to federal court, arguing that his firing violated Title VII. The county urged the court to dismiss the case, arguing that Title VII does not apply to discrimination based on sexual orientation. The district court agreed, and the U.S. Court of Appeals for the 11th Circuit upheld that ruling.
In the third case granted today, R.G. & G.R. Harris Funeral Homes v. EEOC, the justices will consider whether Title VII’s protections apply to transgender employees. The petition for review was filed by a small funeral home in Michigan, owned by Thomas Rost, who describes himself as a devout Christian. In 2007, the funeral home hired Aimee Stephens, whose employment records identified Stephens as a man. Six years later, Stephens told Rost that Stephens identified as a woman and wanted to wear women’s clothing to work. Rost fired Stephens, because Rost believed both that allowing Stephens to wear women’s clothes would violate the funeral home’s dress code and that he would be “violating God’s commands” by allowing Stephens to dress in women’s clothing.
The federal Equal Employment Opportunity Commission filed a lawsuit on Stephens’ behalf, and the U.S. Court of Appeals for the 6th Circuit ruled for the EEOC and Stephens. The funeral home went to the Supreme Court last summer, asking it to review the lower court’s ruling. Today the justices granted the funeral home’s petition for review, agreeing to consider whether Title VII bars discrimination against transgender people based on either their status as transgender or sex stereotyping under the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, which indicates that a company can’t discriminate based on stereotypes of how a man or woman should appear or behave. The funeral home’s case will be argued separately from Bostock and Altitude Express.
This post was originally published at Howe on the Court.
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The Supreme Court will release orders from the April 18 conference on Monday at 9:30 a.m.; John Elwood’s Relist Watch compiles the petitions that were relisted for this conference.
There is a possibility of opinions on Tuesday at 10 a.m.
On Monday, the justices hear oral argument in Food Marketing Institute v. Argus Leader Media and Fort Bend County, Texas v. Davis.
On Tuesday, the justices hear oral argument in Department of Commerce v. New York, Mitchell v. Wisconsin and Rehaif v. United States.
On Wednesday, the justices hear oral argument in Quarles v. United States and Taggart v. Lorenzen.
On Friday, the justices met for their April 26 conference.
The post This week at the court appeared first on SCOTUSblog.
Oyez has posted the aligned audio and transcripts from this week’s oral arguments at the Supreme Court. The court heard argument this week in:
The post Now available on Oyez: This week’s oral argument audio aligned with the transcripts appeared first on SCOTUSblog.
On its face, Department of Commerce v. New York asks whether the government may add a question about citizenship status to the 2020 decennial census. But as Professor Justin Levitt explains in a forthcoming essay, if the government wins, the citizenship data could influence the allocation of representation in the state legislatures, raising a whole new set of constitutional questions left unresolved by the Supreme Court’s 2016 decision in Evenwel v. Abbott.
In 2018, the government announced that the 2020 census would include a question to determine the citizenship status of every person in the United States. A number of states, localities and civil rights groups challenged the addition of the citizenship question, arguing that the government’s reasons for including the question were unsound and were a pretext for discrimination, and that including the question would depress the response rate. The government responded by arguing that the challengers lacked standing, that the choice of census questions was unreviewable and that in any case the addition of the citizenship question was justified by the need to gather such data to enforce the Voting Rights Act. (Amy Howe provides a more detailed overview of the case.)
Levitt’s essay begins by reviewing the process by which the government added the citizenship question to the census, and then explains why doing so could lower the response rate, particularly among Hispanics or other groups fearing the consequences for immigration enforcement. The stakes are high: An undercount could lower federal funding and reduce representation for the states and localities affected. Levitt, a former Deputy Assistant Attorney General in the Civil Rights Section of the U.S. Department of Justice, also disagrees with the government’s assertion that citizenship data is needed to pursue litigation under the Voting Rights Act. As is clear from the briefing, as well as SCOTUSblog’s recent symposium on this issue, these are hotly contested issues.
In the last section of his essay, Levitt moves beyond these legal and factual disputes to explain how the outcome of the case could “fundamentally rewrite the terms of American representation” by facilitating changes in states’ method of drawing legislative districts. In Evenwel v. Abbott, the Supreme Court decided unanimously that the Constitution permits states to draw legislative districts of equal size based on the entire population, meaning that each district would have an equal number of people. But that decision left open the question whether states could draw districts, and thus allocate political representation, based on some other metric — such as citizenship or eligibility to vote.
To do so, states would need detailed and accurate information about the number of citizens in each district — data that is currently unavailable. As Professor Nathan Persily has explained, the only source for that data today is the American Community Survey, which is given annually to only 2.5 percent of households, and thus is not sufficiently granular to serve as a basis for drawing legislative districts throughout a state. If the government prevails in Department of Commerce v. New York, however, it will generate the missing citizenship data, enabling states to draw districts based on citizenship rather than population.
Levitt is opposed to such a change, arguing that drawing legislative districts based on anything other than total population requires embracing a theory of representation that excludes some groups, such as immigrants, felons, children or other nonvoters, all of whom must abide by state laws and regulations and pay state taxes. Theories of representation underlying the choice to draw legislative districts by population as opposed to by citizenship or eligibility to vote are highly contested as a constitutional and normative matter, dividing the justices as well as legal scholars.
The Supreme Court dodged that question in Evenwel, but depending on the outcome of Department of Commerce v. New York, it may have to answer it soon. As Levitt explains, in deciding whether noncitizens may be counted by the census, the court could lay the groundwork for a future case questioning whether, for purposes of political representation, they should count at all.
The post Academic highlight: Levitt on the collateral consequences of <em>Department of Commerce v. New York</em> appeared first on SCOTUSblog.
This week we highlight petitions pending before the Supreme Court that address, among other things, the constitutionality of invalidating a student-aid program because it affords students the choice of attending religious schools, whether the Fourth Amendment requires a caseworker who suspects abuse to obtain a warrant to strip-search a child, and the compatibility of the “physical realm” test with the Patent Act and Supreme Court precedent.
The petitions of the week are:
Issues: (1) Whether the Fourth Amendment requires a caseworker who suspects abuse to obtain a warrant to strip-search a child—an issue that has produced an acknowledged 4-2 circuit split, and is nearly identical to the issue the Supreme Court granted certiorari on but did not resolve in Camreta v. Greene; (2) whether, even if a warrant is not required in this context, clearly established federal law prohibits conducting warrantless strip searches of children at school when there are no “specific suspicions” of danger or wrongdoing justifying the “categorically extreme intrusiveness of a search down to the body”; and (3) whether the Supreme Court should reconsider its qualified-immunity jurisprudence to accord with historical common-law practice and to eliminate the widespread confusion plaguing current qualified-immunity doctrine.
Issue: Whether it violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.
Issue: Whether the U.S. Court of Appeals for the Federal Circuit’s “physical realm” test contravenes the Patent Act and the Supreme Court’s precedent by categorically excluding otherwise patentable processes from patent eligibility.
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