But, as Judge Elena Kagan explains in a convincing dissent, Marietta could have dire consequences for victims of LGBTQ discrimination, as well as for some victims of religious and other forms of discrimination. Read in general, the Marietta ruling could provide both government entities and private companies with a solution they can use to avoid enacting anti-discrimination laws – even if they engage in illegal discrimination. Medicare is typically considered a single-payer health plan for the elderly, but it also extends coverage to hundreds of thousands of Americans with end-stage renal disease – a costly condition that requires patients to either undergo dialysis or receive a kidney transplant for to continue living. Some patients with this disease, however, also have private health coverage through the health plan provided by the employer or through another private insurer. A federal law passed in the early 1980s stipulates that, for these individuals, Medicare will only cover dialysis costs that are not already covered by the private insurer. Federal law also stipulates that a private health plan “cannot differentiate the benefits it provides between people with end-stage kidney disease and other people covered by this plan based on the presence of end-stage kidney disease, the need for kidney clearance.” or in any other way. “The idea is to prevent private programs from offering such limited coverage of kidney care that Medicare bears the full cost of dialysis. In Marietta, however, an employer-provided health plan provided “relatively limited rates of compensation” to dialysis providers for allegedly violating a law that prohibits private programs from discriminating against people with end-stage renal disease. Judge Brett Kavanaugh’s opinion on the Court reads the federal statutes closely, arguing that as long as a health plan provides “the same benefits of dialysis regardless of whether a person has end-stage renal disease”, it does not violate federal law. The problem with this advantage, as Kagan explains in disagreement, is that “outpatient dialysis is an almost perfect representative of end-stage renal disease.” According to Kagan, 97 percent of “people diagnosed with end-stage renal disease – all those who do not receive preventive kidney transplantation – undergo dialysis.” And 99.5 percent of “outpatients undergoing dialysis have or are developing end-stage renal disease.” Thus, if an insurer refuses to cover dialysis, it is essentially refusing coverage to end-stage kidney disease. This leads us to why this decision could have serious implications for LGBTQ Americans. The Supreme Court has long ruled that laws targeting “homosexual behavior” are themselves a form of discrimination against LGBTQs. That is, a state can not circumvent anti-LGBTQ discrimination laws by targeting same-sex sexual activity. Just as the need for dialysis is an “almost perfect agent” for identifying people with end-stage kidney disease, same-sex sexual activity is a powerful agent for identifying people who are gay or bisexual. Thus, if Marietta’s logic applies to laws prohibiting LGBTQ discrimination – that is, if governments, employers and other institutions that may wish to discriminate on the basis of sexual orientation are allowed to engage in activities that are closely linked to are you gay or bisexual – these laws could be made meaningless.
Kavanaugh’s reasoning in Marietta could have profound implications for LGBTQ rights.
Various federal and state laws prohibit discrimination on the basis of certain protected characteristics. Title VII of the Civil Rights Act 1964, for example, prohibits discrimination on the basis of “race, color, religion, sex or ethnic origin”. In the case of Bostock v. Clayton County (2020), the Court ruled that discrimination based on sexual orientation or gender identity is a form of gender discrimination prohibited by Title VII and similar laws. But what if an organization discriminates on the basis of an activity closely related to race, gender, or other protected trait? This depends on how closely this activity is related to the feature. The Court has also given different answers to this question at various points in its history. The low water mark for Court rulings prohibiting discrimination on the basis of activity closely linked to a protected feature was its 1974 judgment in Geduldig v. Aiello. Geduldig argued that discrimination based on pregnancy is not a form of gender discrimination, although the ability to conceive is closely linked to being a woman. As Kavanaugh’s opinion in Marietta argued that a health plan does not discriminate against people with kidney failure, as it provides the same benefits of dialysis to all its clients, Geduldig argued that discrimination based on pregnancy does not equate to discrimination against women. . . “In the absence of evidence that discrimination in pregnancy is mere pretexts designed to incite insidious discrimination against members of one sex or the other,” the Court reasoned in the Geduldig case, “legislators are constitutionally free to include or to exclude pregnancy “in broader laws that protect workers with health conditions. Four years after Geduldig, Congress enacted the Pregnancy Discrimination Act, which provided that employment discrimination “based on pregnancy, childbirth or related medical conditions” was a form of sex discrimination in violation of Title VII. Subsequent judgments of the Supreme Court also undermine Geduldig’s argument that discrimination on the basis of an activity closely linked to a protected trait is lawful. Kagan notes two such decisions in her disagreement with Marietta. One is the landmark decision of the LGBTQ Rights Court in Lawrence v. Texas (2003), which overturned a Texas law banning certain sexual acts. Among other things, Lawrence explained that “when homosexual behavior becomes criminal under state law, this statement is in itself an invitation to discriminate against homosexuals in both the public and private spheres.” In the event that Lawrence left any doubt on this point, the subsequent judgment of the Court in the Christian Legal Society v. Martinez (2010) made it clear that laws prohibiting discrimination based on sexual orientation also prohibit discrimination against persons who engage in same-sex sexual activity. . As Judge Ruth Bader Ginsburg wrote of her Martinez Court, “our decisions refuse to distinguish between the regime and the conduct in that context.” Similarly, the Court recognized in Bray v. Alexandria Women’s Health Clinic (1993) that when an institution targets activities that are “engaged exclusively or primarily by a particular category of people,” then an intent of adversity of this class can easily be substantiated. . » As Judge Antonin Scalia wrote in Bray, “the tax on the use of yarmulkes is a tax on the Jews.” This rule applies, moreover, although there are some cases where non-Jews wear yarmulkes (or, in this case, when straight people engage in same-sex sexual activity). As Kagan writes in her disagreement with Marietta, “the yarrow tax remains a tax on Jews, even if friends of other religions may occasionally wear a tax on a Mitsva bar.” Admittedly, the Court’s previous opinions have not been precise about how closely an activity should be linked to a protected feature before discrimination against persons engaged in that activity becomes a form of unlawful discrimination. Although Bray acknowledged that a tax on yarmulkes would discriminate against Jews, Bray also rejected the suggestion that because “voluntary abortion is a female-only activity, it is ipso facto to discriminate insidiously against women as class”. (Scalia did not have very enlightened views on trans or non-trans people.) Citing Geduldig, Scalia wrote to Bray that “while it is true … that only women can become pregnant, it does not mean that every legislative classification of pregnancy is a classification based on gender” – including classifications concerning patients who wish to become pregnant. to terminate pregnancies. But as Kagan points out in her disagreement with Marietta, identifying people who need dialysis is an extremely good agent for identifying people with end-stage kidney disease. Indeed, it is very likely that he is as good a proxy as identifying people who are involved in same-sex activities is a representative for identifying people who are gay or bisexual. This is why Marietta is potentially a serious blow to LGBTQ rights, as it allows differentiated behavior therapy (dialysis) which is almost the perfect representative of a condition (I have end-stage renal disease) that is protected. by the law. This could undermine the Court’s view in the Lawrence and Martinez case that anti-discrimination legislation does not distinguish between the “status” of gay or bisexual and the “conduct” of same-sex sex.
