The nine Supreme Court justices appeared stunned Wednesday by the state of Ohio’s defense in a reverse discrimination case, in which the Buckeye State’s solicitor general all but conceded the main argument to the plaintiff.
The high court had ostensibly convened to hear arguments about whether a straight person must show more evidence of discrimination than a gay person to bring forward a case.
But T. Elliot Gaiser, arguing on behalf of the state’s Department of Youth Services, distanced himself from the lower court rulings he had been tasked with defending and agreed with plaintiff Marlean Ames’ attorneys that heterosexual people should not face a higher burden — bewildering the justices.
“My friends on the other side have language they can point to about additional or higher burden that we think … shouldn’t be scrutinized on that level,” Gaiser acknowledged under questioning from conservative Justice Clarence Thomas.
“We’re not defending the exact language there,” he reiterated to conservative Justice Brett Kavanaugh about the lower court rulings.
“You mean the exact language?” asked liberal Justice Elena Kagan. “Are you defending something like that language? I mean, it’s a little bit of a peculiar situation, isn’t it? Because this is what the courts said.”
“I don’t know what to make of this,” Kagan added.
Ames had sued the Ohio Department of Youth Services in 2019, claiming she had been wrongly demoted from her position in favor of a gay man and had previously been turned down for promotion in favor of a lesbian.
The plaintiff claimed discrimination on the basis of sex and sexual orientation under Title VII of the Civil Rights Act of 1964, with her lawyers noting that she had received positive performance evaluations before unsuccessfully seeking a promotion in the spring of 2019.
Lower courts, such as the Cincinnati-based 6th Circuit Court of Appeals, ruled against Ames, finding that as a straight woman who is part of a “majority group,” she must show “background circumstances” to prove that the defendant is an “unusual employer who discriminates against the majority.”
“I think the idea that you hold people to different standards because of their protected characteristics is wrong,” Gaiser admitted during his exchange with Kagan.
Instead, the solicitor general attempted to argue that the “evidence here showed … that no one knew” Ames’ sexual orientation when the questionable hiring decisions were made.
“Now you’re asking us to opine on various other aspects,” Kagan said, “that are, you know, really not intertwined at all with that question.”
“You say that’s not met because the relevant decision makers didn’t know the plaintiff’s sexual orientation,” added Justice Neil Gorsuch to Gaiser. “Interesting argument. Not presented here.”
Some of the justices openly mused about sending the case back to the lower courts to consider the new argument raised by Gaiser.
“We’re in radical agreement today,” Gorsuch assessed. “Perhaps the [lower] court should take a look at that before we do. What would be wrong with that?”
Gaiser then suggested that the justices could still affirm the lower court rulings backing the Department of Youth Services even if they took issue with rationale.
Xiao Wang, an attorney for Ames, later returned to the stand and briefly rebutted Gaiser by pointing out that “all Ms. Ames is asking for is equal justice under law.
“Not more justice, but certainly not less,” he said.
A ruling in Ames v. Ohio Department of Youth Services is expected by the end of June.