Michelle Quist: Dreamers, sex and the Supreme Court

October marked the beginning of the 2019 term for the United States Supreme Court, and its new term is already in high gear. There are a few notable cases Utahns should keep an eye on.

Department of Homeland Security v. Regents of the University of California; Trump v. NAACP; McAleenan v. Vidal

The court heard arguments on Tuesday in these consolidated cases, which appealed the Trump administration’s decision to revoke the Deferred Action for Childhood Arrivals, or DACA, program. The program defers deportation of persons who were brought to the United States as children, who also meet other requirements.

President Obama initiated the DACA program after Congress failed to agree on the DREAM Act. President Trump rescinded Obama’s executive order and encouraged Congress to provide a fix.

In Utah, there are more than 10,000 Dreamers over the past five years who know no other home. A majority of Utahns support legislation that would allow Dreamers to stay.

It’s the right thing to do.

The court heard arguments on Tuesday and seemed to signal it would side with the administration on the issue of whether the president had the ability to rescind an earlier executive order with a second executive order.

The unusual aspect of this case is that everyone agrees the administration can end DACA if it wants, but the parties argued that how the administration made the decision in this case was insufficient – too cursory and without a legitimate explanation.

As Justice Samuel Alito asked, if a former administration decides not to prosecute drug cases under 5 kilos of cocaine, can’t the next administration change that policy to 3 kilos of cocaine?

It will likely be up to Congress to fix this problem, appropriately.

Kansas v. Glover

In continued Forth Amendment jurisprudence, the court heard arguments earlier this month asking whether police can find reasonable suspicion that a crime has been committed to justify a traffic stop solely on the basis of a suspended or revoked license.

Sarah Harrington argued for the defendant in this case. She is one of only three women, and 25 men, who will be arguing in front of the court this month.

Bostcok v. Clayton County, Georgia; R.G. and G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission

The court heard arguments in these controversial October cases on whether Title VII of the Civil Rights Act prohibits discrimination against gay and transgender people in employment.

Title VII prevents discrimination “on the basis of race, color, religion, sex, or national origin.” The issue in this case is whether that protection also applies to gay, lesbian and transgender employees. When Congress passed the Civil Rights Act, it did not intend to include sexual orientation within the parameters of its protections. But the court has recognized other claims that Congress did not intend to protect, including sexual harassment.

Proponents of the change encouraged the justices to focus on the text of Title VII – the textual inquiry is, would the same thing have happened if the employee was a different sex? In the case of a gay employee, a man who is fired for being attracted to men would not have been fired if he had been a woman who is attracted to men.

Opponents of the change argued that Congress did not intend the laws to cover gay and transgender individuals. They argue that if a person can self-select their protections according to their sex shouldn’t they also allowed to self-select their race or ethnicity?

June Medical Services v. Gee

And finally, the court will hear an abortion case arising from a Louisiana law that requires doctors performing abortions to have admitting privileges at nearby hospitals. The law would severely restrict the number of doctors performing abortions. Proponents argue the law encourages doctor competence.

The court struck down a similar Texas law in 2016, 5-3 (after Justice Antonin Scalia passed away), but Justice Anthony Kennedy has since left the Court, and Justices Neil Gorsuch and Brett Kavanaugh have joined.

In other words, the court’s term is loaded with highly-charged political and social meaning right as we enter a presidential election year. Buckle up.

Michelle Quist

Michelle Quist is a columnist for The Salt Lake Tribune.