On Wednesday, February 26, the US Supreme Court heard oral arguments regarding an allegation of anti-straight bias. The case is Ames v. Ohio Department of Youth Services. Ms. Ames argues she was discriminated against because her gay supervisor illegally punished her for being straight. Some appellate courts, including the 6th circuit (where Ohio sits), make it especially difficult for members of majority populations to sue for discrimination. Ames’ petition claims the different requirements, based on immutable characteristics (her heterosexuality), amount to illegal discrimination.

We spoke with Liberty Nation’s Legal Affairs Editor, Scott D. Cosenza, to understand what arguments were made for and against the proposition and to figure out what implications the ruling may carry.

Mark Angelides: Scott, what prompted Ms. Ames to seek help from the highest Court?

Scott D. Cosenza: She was a career employee of the department. She claims her supervisor was a homosexual woman who refused to grant her earned promotions and even demoted her – all because Ames was heterosexual, and the supervisor favored less well-qualified candidates because they were gay.

Ames sued and found out that if the sex preferences were reversed, her claim would proceed. If Ames was gay and lost advancement and suffered at the hands of a straight boss, she could go to trial and see what the jury said. That’s because when minorities allege discrimination, they can go to trial without having direct evidence of discrimination. The mere fact, for instance, that a lesser-qualified white man was hired over a well-qualified black man is enough to get a case before a jury. However, when the victim is part of the majority, court rules require direct evidence.

Mark: And since that is the 6th Circuit Court of Appeals rule, Ms. Ames lost in the lower courts. What is the specific question before the High Court?

Scott: Whether plaintiffs suing must show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

Mark: President Biden’s Solicitor General Elizabeth Prelogar was very well regarded. What do we know about the new solicitor general, and did he show the same talent as Prelogar?

Scott: Prelogar was excellent because she could most effectively distill arguments to their essence and present them eloquently and with a remarkable economy of words to benefit her client. Trump’s nominee for the position is his former criminal attorney, D. John Sauer, who attended his Senate confirmation hearing during Tuesday’s arguments. A different kind of trial, to be sure.

A deputy solicitor general argued this case, Ashley E. Robertson, who has a law degree from Stanford and is a former law clerk to Supreme Court Justice Elena Kagan. Robertson acquitted herself well enough, but we will need more data to understand how Mr. Sauer will be handling his office.

Mark: To clarify, Ms. Robertson represents the federal government’s position. So does this mean that the government believes the bar for discrimination cases is correct?

Scott: Ms. Ames, the state of Ohio, and the federal government all made separate arguments. Robertson’s arguments on behalf of the Trump administration are that the statute allows for no special treatment for claims made by any group and that all plaintiffs and defendants should bear the same burdens, no matter the characteristics of the parties. She argued the justices should send the case back down to the District Court, with instructions to re-rule under the appropriate standard.

Mark: Scott, please give me the highs and lows regarding the arguments made before the Court.

Scott: The arguments were relatively free from intense exchanges or passion accompanying the more contentious issues.

Mark: Did any justices seem persuaded or ask questions that gave anything away?

Scott: We’ll have to see how much it gave away, but Justice Kavanaugh asked the following question to Ames’ attorney, with a sympathetic tone, “So… So, all you want for this case is a really short opinion that says discrimination on the basis of sexual orientation, whether it’s because you’re gay or because you’re straight, is prohibited, and the rules are the same whichever way that goes?”

Mark: Taken as a whole, does it seem likely to you that the Court will file a decisive opinion? Or are they more likely to look for an off-ramp? And if so, why?

Scott: It’s always a good idea to expect the Court to avoid ruling on any given issue if they can. Justices do this, and for good reasons, generally. However, they also are loathe to suffer a split in the judicial circuits, which is present now regarding this issue. Twelve federal judicial circuits divide the country into different regions. Some plaintiffs now have this extra burden based on their geography – which judicial circuit they are in. Another way to say it is that some defendants have extra protection depending on their geography. I suspect that might compel more action on this case than we would otherwise see.

Mark: Consider this case against the backdrop of race-preference litigation and in light of the 2023 decision in the Students for Fair Admission case. The Court basically undid affirmative action, ruling it unconstitutional. Wouldn’t an opinion in this case in favor of the plaintiff bolster that prior ruling? Essentially creating a feedback loop of sorts?

Scott: Mark, I think you’re right to pick up on that, and there is a certain feedback-loop energy these cases take. I have described it in other contexts as a judicial pressure wall, which can force the law in a particular direction. The energy can become a force much like a tide – a glance reveals little sound and fury, but it’s near impossible to resist while underway and moving a great mass a great distance. Or dominoes, if you prefer. Edward Blum engineered the victory over race-based admission decisions in Students for Fair Housing, and the dominoes continue to fall.

Liberty Vault: Students for Fair Admissions v. Harvard