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It should come as little surprise that the current U.S. Supreme Court, with its strong 6-3 conservative majority, has ruled conservatively on issues such as affirmative action and LGBTQ+ rights. It would be unrealistic to expect otherwise.
But still, a little intellectual consistency from the majority would be nice. They seem to be decrying discrimination in one instance (or at least what they consider to be discrimination) while endorsing it in another.
In one ruling handed down last week, the conservative majority led by Chief Justice John Roberts essentially struck down the use of race-based admissions at public and private universities (with a notable carve-out for military service academies), claiming this long standing attempt to address racial discrimination and inequality actually furthers it. A day later, the Roberts court effectively endorsed a different kind of discrimination in the name of free speech and religious belief, ruling that a Colorado web designer could refuse to make websites for same-sex weddings.
To us non-lawyers, this certainly appears to be the court majority picking and choosing what counts as discrimination to fit a certain ideology, and to decry discrimination when it suits their argument while elevating it when the opposite is true. It is an apparent intellectual inconsistency that is likely to have devastating consequences in real world America, where people of color and LGBTQ+ people continue to face discrimination and inequality.
“To demand that colleges ignore race in today’s admissions practices — and thus disregard the fact that racial disparities may have mattered for where some applicants find themselves today — is not only an affront to the dignity of those students for whom race matters,” Justice Ketanji Brown Jackon, the first Black woman to serve on the Supreme Court, wrote in a blistering dissent to the affirmative action ruling. “It also condemns our society to never escape the past that explains how and why race matters to the very concept of who ‘merits’ admission.”
In the college admissions case, Roberts insisted that, “Eliminating racial discrimination means eliminating all of it.” And in the Colorado wedding website case, Justice Neil Gorsuch found that Colorado’s public accommodation law conflicts with the First Amendment and wrote that, “Consistent with the First Amendment, the Nation’s answer is tolerance, not coercion.”
We think these perspectives fundamentally miss — or perhaps, purposefully misconstrue — the reality about who is being discriminated against and facing intolerance, both in individual instances and generally across society.
Does working to address long-standing racial inequality with race-conscious admissions amount to its own kind of discrimination? Does religious liberty and free speech include the freedom to discriminate against others when offering services to the general public? We certainly wouldn’t think so. It seems like the court majority is basically saying discrimination is OK if you want to exclude people, but wrong when you want to include people.
Justice Sonia Sotomayor offered a helpful, if bleak, way of thinking about recent court action in her strong dissent in the Colorado wedding website case.
“New forms of inclusion have been met with reactionary exclusion,” she said. “This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims.”
It is sad to see the current Supreme Court majority reject this past bravery, and to trade it for an intellectual inconsistency that will hamper efforts to promote diversity and address persistent inequality across the country.
