For nearly a quarter century, the US Supreme Court has set down constitutional protections for gay men and lesbians, a trend that reached a dramatic high point in its 2015 decision declaring a right to same-sex marriage.
The nine justices on Tuesday heard a narrower but potentially more practical question for LGBTQ interests: Does a 1964 federal law that prohibits sex discrimination in the workplace cover bias arising from an individual’s sexual orientation or gender identity?
The tenor of the justices’ questions – preoccupied at times with shared bathrooms and showers – suggested a break with the steady pattern of advancing gay rights.
It’s the nature of this new dispute and, more importantly, a new Supreme Court.
This is the first week of the justices’ annual session, one that promises to be especially divisive – encompassing, along with gay rights, abortion, gun control and immigration disputes – and one in which the justices are now solidly divided 5-4, along conservative-liberal lines. The court’s final rulings are likely to come smack in the middle of the 2020 presidential election campaign.
The trio of cases heard Tuesday revolves around a federal statute, Title VII of the 1964 Civil Rights Act, which prohibits job discrimination “because of sex.” Conservative justices suggested it was up to Congress, not the court, to clarify the scope of that protection for workers.
“If the Court … interprets this 1964 statute to prohibit discrimination based on sexual orientation,” Justice Samuel Alito posited, some people might think the justices were “acting exactly like a legislature.”
Most significantly, this is the first LGBTQ dispute heard since the 2018 retirement of Justice Anthony Kennedy. The centrist-conservative took the lead to protect gay rights in hard-fought cases in 1996, 2003 and 2015. He was joined by justices to his left for a majority.
After two hours of often-testy questioning on Tuesday, there was no clear majority to side with two gay men fired from their jobs, as a skydiving instructor and county child welfare services coordinator, and a transgender woman who lost her position as a funeral home director.
The only one in the five-justice conservative wing who expressed some interest aligning with the four liberals was Justice Neil Gorsuch. Yet while Gorsuch said it might be “close” that Title VII’s text covers gay or transgender individuals, he worried about the “massive social upheaval” that could come from such a ruling.
He expressed concerns that workplace bathrooms and dress codes might suddenly be subject to lawsuit, if the high court were to interpret Title VII to cover LGBTQ individuals.
Lawyer Pamela Karlan, arguing on behalf of the gay men who had lost their jobs, said that, under her test for the court, gay individuals would be treated differently “because of sex” when they were fired because they wanted to date other men. And, she emphasized, her test necessarily involves some injury that a “reasonable person” would experience, rather than an “idiosyncratic preference” regarding “an otherwise valid dress code or bathroom rule.”
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The law as is, or as it would be expanded?
Karlan, a Stanford University law professor, and David Cole, American Civil Liberties Union national legal director, representing Aimee Stephens, fired from a funeral home, argued that the words of Title VII and Supreme Court precedent cover discrimination based on sexual orientation or transgender status.
Justice Ruth Bader Ginsburg was sympathetic to that argument, observing that when the law was written 55 years ago members of Congress would not have contemplated grievances arising from sexual harassment. Yet the Supreme Court ruled more than two decades later, in 1986, that harassment fell under Title VII, after the behavior women were experiencing on the job became clear.
“No one ever thought sexual harassment was encompassed by discrimination on the basis of sex back in ’64,” said Ginsburg, who first gained national prominence as a women’s rights advocate in the 1970s. “… Now we say, of course, harassing someone, subjecting her to terms and conditions of employment she would not encounter if she were a male, that is sex discrimination, but it wasn’t recognized to be such in the beginning.”
Joining Ginsburg queries receptive to a broader interpretation of Title VII were liberal Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor.
Coming at the case from the other side, Chief Justice John Roberts questioned whether Cole’s arguments regarding Title VII’s breadth failed to account for actual policies in the workplace, particularly if a transgender individual wanted “to use a bathroom consistent with gender identity rather than biological sex.”
Roberts separately observed to Karlan that when states have extended anti-discrimination protections on the basis of sex to sexual orientation and transgender status, they have included exemptions for religious employers. He suggested the overall dilemma should be left to elected officials.
In 2015, Roberts was one of the four justices dissenting from the Kennedy decision declaring a right to same-sex marriage, and lawyers defending the employers in Tuesday’s cases cited the chief’s past opinions in their filings, notably, that “federal courts are blunt instruments when it comes to creating rights.”
The newest justice, Brett Kavanaugh, who succeeded Kennedy and has a more conservative record, spoke only once during the two-hour session and did not reveal his views. Justice Clarence Thomas, as is customary, asked no questions.
Solicitor General Noel Francisco, siding with the employers on behalf of the Trump administration, referred to the court’s 2015 gay marriage ruling and asserted, “In Obergefell [v. Hodges], this Court made very clear that there were good and decent people who had different views with respect to gay marriage and they should be respected. The legislative process is the process that allows those views to … be respected.”
Sotomayor countered, “At what point does a court continue to permit invidious discrimination? … At what point does a court say, Congress spoke about this, the original Congress who wrote this statute told us what they meant. They used clear words. And regardless of what others may have thought over time, it’s very clear that what’s happening fits those words.”
Francisco rejoined, “I guess my answer, your honor, would be at the point when Congress actually addresses the issue.”
The ACLU’s Cole had the last word, in his rebuttal at the lectern: “Interpreting a statute is not depriving the democratic process. It is doing what the Court is supposed to do within the democratic process, and of course if the democratic process disagrees with the Court’s interpretation, it can change it.”
It seemed a hard sell for this new majority.
