At first glance, the Supreme Court’s decision Marietta Memorial Hospital v. DaVita has little to do with LGBTQ rights, or more generally with traditional forms of discrimination. The Court’s 7-2 decision in Marietta closely reads a federal law intended to limit Medicare spending, shifting certain costs from private health plans to the federal government in the process.
But, as Judge Elena Kagan explains in a convincing dissent, Marietta could have dire consequences for victims of anti-LGBTQ discrimination, as well as for some victims of religious and other forms of discrimination. Read wide, the Marietta The decision can provide both government agencies and private companies with a temporary solution that they can use to prevent anti-discrimination laws from being introduced, even if they are guilty of unlawful discrimination.
Medicare is commonly thought of as a single-payer health plan for older adults, but it also extends coverage to hundreds of thousands of Americans with end-stage kidney disease — an expensive condition in which patients undergoing dialysis or a kidney transplant to continue living.
However, some patients with this disease also have private health insurance through their employer-provided health plan or through another private insurer. A federal law enacted in the early 1980s provides that for these individuals, Medicare will only cover the costs of kidney dialysis that are not yet covered by the private insurer.
Federal law also states that a private health plan “cannot differentiate in the benefits it offers between individuals with end-stage renal disease and other individuals covered by such plan based on the existence of end-stage renal disease, the need for renal dialysis, or any other means.” The idea is to prevent private plans from providing such meager coverage of kidney care that Medicare picks up all the dialysis costs.
Nevertheless, in Marietta, an employer-provided health plan provided “relatively limited reimbursement rates” to dialysis providers, in an alleged violation of the law prohibiting private plans to discriminate against individuals with end-stage renal disease. Judge Brett Kavanaugh’s opinion before the Court narrowly reads the federal statute, stating that as long as a health plan provides “the same dialysis benefits regardless of whether a person has end-stage renal disease,” it does not violate federal law.
The problem with this holding company, as Kagan explains in dissent, is that “outpatient dialysis is a nearly perfect proxy for end-stage kidney disease.” According to Kagan, 97 percent “of people diagnosed with end-stage kidney disease — all those who don’t receive a preventive kidney transplant — are on dialysis.” And as many as 99.5 percent of “outpatients on dialysis have or develop end-stage kidney disease.”
So if an insurer refuses to cover dialysis, it is essentially denying coverage to end-stage kidney patients.
Which brings us to why this decision could have serious consequences for LGBTQ Americans. The Supreme Court has long held that laws targeting “homosexual behavior” are themselves a form of anti-LGBTQ discrimination. That is, a state cannot get around laws prohibiting anti-LGBTQ discrimination by targeting sexual activities related to same-sex attraction.
Just as needing dialysis is a “near perfect proxy” for identifying people with end-stage kidney disease, same-sex sexual activity is a strong proxy for identifying people who are gay or bisexual. So if the logic of Marietta applied to laws that prohibit LGBTQ discrimination — that is, if governments, employers, and other institutions that may wish to discriminate on the basis of sexual orientation were allowed to target activities closely related to being gay or bisexual — those laws may become meaningless.
Kavanaugh’s reasoning in Marietta can have profound implications for LGBTQ rights.
Several federal and state laws prohibit discrimination because of certain protected properties. For example, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on “race, color, religion, sex, or national origin† In Bostock v. Clayton County (2020), the Court ruled that discrimination based on sexual orientation or gender identity is a form of sex discrimination prohibited by Title VII and similar laws.
But what happens if an organization discriminates based on an activity closely related to race, gender, or another protected characteristic? That depends on how closely that activity is tied to the trait. The Court has also given different answers to this question at different times in its history.
The low-water limit for the Court’s rulings prohibiting discrimination based on activities closely related to a protected property was its 1974 ruling in Patient v. Aiello† Patient ruled that discrimination based on pregnancy does not constitute unlawful discrimination based on sex, even though the ability to conceive is closely related to being a woman.
Just like Kavanaugh’s opinion in Marietta ruled that a health plan does not discriminate against people with kidney failure, as long as it provides the same dialysis benefits to all of its customers, Patient ruled that discrimination based on pregnancy does not equate to discrimination against women.
“In the absence of evidence that discrimination in relation to pregnancy is merely pretext designed to inflict horrendous discrimination against members of one sex or the other,” the Court reasoned in Patient“legislators are constitutionally free to include or exclude pregnancy” in broader laws protecting workers with health problems.
four years later PatientCongress enacted the Pregnancy Discrimination Actstipulating that discrimination in the workplace “based on pregnancy, childbirth or related medical conditions” is a form of gender discrimination that violates Title VII† And undermine subsequent Supreme Court decisions Patient‘s suggestion that discrimination based on an activity closely related to a protected property is permissible.
Kagan notes two such decisions in her Marietta disagreement. One is the court’s groundbreaking decision on LGBTQ rights in Lawrence v. Texas (2003), who rejected a Texas law banning certain sexual acts. Among other things, Laurentius stated that “when homosexual conduct is criminalized by state law, that declaration is itself an invitation to discriminate against homosexuals in both public and private spheres.”
In case of Laurentius left any doubt on this point, the Court’s subsequent decision in Christian Legal Society v. Martinez (2010) made clear that laws prohibiting discrimination based on sexual orientation also prohibit discrimination against people who engage in same-sex sexual activities. As Judge Ruth Bader Ginsburg wrote before her court in: Martinez“our decisions have refused to distinguish between status and behavior in this context.”
Likewise, the Court recognized in Bray v. Alexandria Women’s Health Clinic (1993) that when an institution focuses on activities “exclusively or predominantly exercised by a particular class of people”, “an intent to harm that class can be readily assumed”. As Judge Antonin Scalia wrote in: beams“a tax on the wearing of skullcaps is a tax on jews.”
This rule also applies even though there are some instances where non-Jews wear skullcaps (or, for that matter, when heterosexuals have sexual activity with people of the same sex). As Kagan writes in her Marietta dissent, “a tax on yarmulkes remains a tax on Jews, even if friends of other religions occasionally levy one at a bar mitzvah.”
Admittedly, the Court’s previous opinions were not precise about how closely an activity must be associated with a protected property before discrimination against people engaged in that activity becomes a form of unlawful discrimination. although beams recognized that a tax on yarmulkes would unlawfully discriminate against Jews, beams also rejected the statement that because “voluntary abortion is an activity undertaken only by women, it is unfavorable” ipso facto to mockingly discriminate against women as a class.” (Scalia had no particularly enlightened views on transgender or non-binary individuals.)
Quote from Patientwrote Scalia in beams that “while it is true . † † that only women can become pregnant, it does not follow that every legal classification regarding pregnancy is a classification based on sex” – including classifications regarding patients who wish to terminate their pregnancy.
But, as Kagan points out in her: Marietta dissent, identifying people who need outpatient dialysis, is an extremely good proxy for identifying people with end-stage renal disease. Indeed, it is most likely as good a proxy as identifying people who engage in same-sex activities is a proxy for identifying people who are gay or bisexual.
That’s why Marietta is potentially a serious blow to LGBTQ rights, as it allows differential treatment based on behavior (undergoing dialysis) that is a near perfect proxy for a status (with end-stage renal disease) protected by law. This could undermine the Court’s tenacity Laurentius and Martinez that the anti-discrimination law makes no distinction between the “status” of being gay or bisexual, and the “behaviour” of having sex with people of the same sex.