June 16, 2020

Supreme Court Rules on LGBTQ Rights

On Monday “The Supreme Court, by a vote of 6-3, ruled that even if Congress may not have had discrimination based on sexual orientation or transgender status in mind when it enacted the landmark law over a half century ago, Title VII’s ban on discrimination protects gay, lesbian and transgender employees. Because fewer than half of the 50 states currently ban employment discrimination based on gender identity or sexual orientation, today’s decision is a major victory for LGBT employees.” SCOTUSblog

See past issues

From the Left

The left supports the ruling, arguing that it is a correct reading of the text of the law and that it will benefit many gay and transgender employees.

A simple example illustrates why Gorsuch and the court were correct. Imagine an employee named Chris who never has met the employer. Chris and the employer had communicated by text and email, but never met in person or talked by phone. Chris often has referred to a husband in discussing evening or weekend plans. When Chris and the employer meet, the employer is surprised that Chris is male. The employer fires Chris, saying that he does not want to employ gay people. If Chris were female, Chris would still have the job. That, by definition, is employment discrimination because of sex.”
Erwin Chemerinsky, Los Angeles Times

“The scope and thus the impact of this decision is hard to overstate, aside from the immediate protections it offers for ‘approximately 1 million workers who identify as transgender and 7.1 million lesbian, gay and bisexual workers’… Among other things, it will likely doom new proposed regulations from the Trump administration stripping health-care protections from transgender individuals, since it was explicitly based on [Justice] Alito’s rejected interpretation of the language of discrimination according to sex. Politically, the fact that Trump’s first Supreme Court nominee, Neil Gorsuch, wrote this decision could be ominous for the president.”
Ed Kilgore, New York Magazine

“The ruling is a bracing defeat for social conservatives, the Trump administration, and the conservative legal movement. Legal conservatives have long justified their support for Trump by citing his success at placing like-minded jurists on the federal bench, with Gorsuch as the foremost example of their victory. Monday’s ruling suggests that the reliably conservative Supreme Court majority sought for so long by right-wing legal activists may not be quite as reliable as it seems—and that their moral and ethical sacrifices to pursue it may have been in vain.”
Matt Ford, The New Republic

“This watershed ruling implicitly recognizes that rights such as gay marriage may ring hollow if one can be fired for exercising them. And it represents a historic judicial affirmation of the dignity and equality of transgender persons…

“Gorsuch simply accepts the experience and humanity of transgender people as a given, affirming their place in our society. Gorsuch does not hesitate in correctly referring to Aimee Stephens — the transgender plaintiff — as ‘she.’ This may seem like a simple gesture. Yet it stands as a towering rebuke of judges who have recently issued decisions that cruelly misgender transgender plaintiffs… Monday’s victory is not just a triumph of textualism; it is a triumph of love and dignity.”
Joshua Matz and Robbie Kaplan, Washington Post

“For some time, overwhelming majorities of the American public have opposed job discrimination against LGBTQ people. According to data from the Public Religion Research Institute, not only did 72 percent of Americans in 2019 say they favored ‘laws that would protect gay, lesbian, bisexual, and transgender people against discrimination in jobs, public accommodations, and housing,’ that number included 61 percent of Republicans

“All of which tells us that as a political matter, this question is pretty much settled. Of course, in theory the Supreme Court is supposed to ignore politics and simply rule on the law, but that’s often not how it works — or at least, the law is only part of the story. The justices are well aware of public opinion, and while they might resist more at some times than others, they’re capable of bending to political reality.”
Paul Waldman, Washington Post

Some posit that “Justice Gorsuch’s commitment to textualism, a method of interpreting laws by looking solely to their plain words, achieved a just result in this case, but when applied too rigidly it can lead to very unjust results. In his previous job on a federal appeals court, then-Judge Gorsuch wrote an opinion holding that a trucker could legally be fired for abandoning his broken-down truck in subzero temperatures — based on a wooden reading of the word ‘operate.’…

“The opinion also hints at a potentially serious obstacle on the horizon: claims by employers that being prohibited from discriminating against gay and transgender workers violates their religious convictions.”
Editorial Board, New York Times

“In a concurring opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), Gorsuch suggested that religious conservatives should enjoy sweeping exemptions from laws prohibiting discrimination on the basis of sexual orientation or gender identity. And the Supreme Court is expected to hear a case next fall asking whether religious organizations have a broad right to engage in anti-LGBTQ discrimination. So the fate of individual LGBTQ workers remains unclear — at least for employees with bosses who object to LGBTQ people on religious grounds.”
Ian Millhiser, Vox

From the Right

The right opposes the ruling, arguing that it is contrary to Congress’s intention when passing the law and that it will result in harmful consequences going forward.

The right opposes the ruling, arguing that it is contrary to Congress’s intention when passing the law and that it will result in harmful consequences going forward.

“Justice Gorsuch cites the High Court’s Phillips (1971) ruling that held Title VII protects a woman not hired because she was a mother. But motherhood is inextricably linked to biological sex. Gender and sexual orientation are not… ‘The good textualist is not a literalist,’ Justice Scalia once wrote… The majority here isn’t merely applying an overly broad or vague law, which Justice Gorsuch has criticized the Court for doing in other cases. The Court is redefining the original meaning of ‘sex’ in the law…

If Justice Gorsuch can use textualism to rewrite a statute to comport with changing public mores, then it is meaningless. Textualism becomes merely one more tool of those who believe in a ‘living Constitution’ that means whatever any Justice says it means. Justice Gorsuch has defined his own jurisprudence down.”
Editorial Board, Wall Street Journal

“For decades, courts rightly interpreted ‘sex’ discrimination in Title VII as prohibiting employers from treating women worse than men because they are women and vice versa. Rewriting the law to include ‘gender identity’ as a protected status should be a power held solely by the legislative branch, and Congress has declined to make this change multiple times. The same is true about adding ‘sexual orientation’ to Title VII… Again, Congress has repeatedly rejected adding that classification to Title VII…

“This very point was recognized earlier in Zarda’s litigation by Judge Gerard Lynch, an Obama appointee on the U.S. Court of Appeals for the 2nd Circuit. Lynch supports adding at least one LGBT classification to Title VII as a matter of policy. Yet he did not interpret the law that way, saying: ‘I would be [very] pleased to awake to learn that Congress had secretly passed such legislation more than a half century ago—until I actually woke up… Because we all know that Congress did no such thing.’”
Ryan Everson, Washington Examiner

“To say that because sexual orientation is related to sex, it is the same thing as sex, is as nonsensical as saying that a square and a rectangle are the same thing for painting purposes because both have four sides. Laws should be interpreted according to the generally understood and understandable public meaning at the time they were adopted. Otherwise, the meaning of laws might change willy-nilly… All this is important because radically new interpretations of existing phrases can lead to unforeseen consequences

“Alito outlined some of them in his dissent, including how this reading of ‘sex’ for employment purposes could also be used not just to allow but to mandate unisex locker rooms, the participation of men in women’s sports leagues, and coed roommates in colleges or to make the use of an undesired personal pronoun a legally punishable offense. Gorsuch and company should never have approached this judicial Pandora’s box. Implementing a social agenda, even an admirable one, is not a judge’s job. As Alito wrote in his opening sentence, ‘There is only one word for what the Court has done today: legislation.’”
Quin Hillyer, Washington Examiner

“In Harris, a funeral home had separate dress codes for men and women; a biological male (Stephens) began ‘living as a woman’ and was fired for dressing as a woman. Under Gorsuch’s reasoning, this would qualify as sex discrimination because a woman would not be fired for dressing as a woman. But that assumes that the Court has decided whether Stephens is a woman, which of course is the entire question in debate in arguments about the legal and social status of transgenderism…

“The Harris Funeral Home enforced its dress code against Stephens not to discriminate against women dressing as women, but because it believed that Stephens was a man… Just as it did in Roe v. Wade (deciding who is a human) or Obergefell v. Hodges (deciding what is a marriage), the Court actually decided the most important question in the case without even admitting it was doing so.”
Dan McLaughlin, National Review

“It is hard to overstate the magnitude of this decision, and the size of the loss to religious and social conservatives. SCOTUS, the highest legal authority in the land, has declared that homosexuality and transgenderism are like race. If you disagree, you are on the side of Klansmen, in effect. This is not just the opinion of Democratic lawmakers, or columnists at The New York Times. This is now the law of the land. And it became the law of the land thanks to two Republican [nominated] justices

“The last reason… why religious conservatives should grit their teeth and vote for Trump anyway has now been blasted to smithereens by this decision written by a Trump justice. And not just a Trump justice, but the paradigmatic Trump justice, the man whose place on the Supreme Court was meant to justify religious conservatives turning a blind eye to Trump’s many other failures. This is what ‘but Gorsuch’ means. Those words are like ashes in the mouth today.”
Rod Dreher, The American Conservative

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