I think I’m surprised!
Pleased, but surprised.
WASHINGTON (AP) — Supreme Court rules gay and lesbian people can sue for workplace bias under landmark civil rights law.
7:05 AM · Jun 15, 202
Here’s a better link:
Good.
Executive order firing Gorsuch and Roberts in 3…2…1
Or a tweet.
I don’t think Trump even pretends to care about LGBTQ rights, for or against.
Really? Trump just issued an executive order removing protections for LGBTQ access to healthcare under the ACA. Pointedly during Gay Pride Month, it should be noted.
As for the SCOTUS decision, I am glad they did the right thing, but sad that we must be happy when they do the right thing. IMH non-lawyer O, this was a no-brainer decision as regards stare decisis. For them to do anything else would have represented an activist departure. So we must be happy and relieved when they do their actual job.
I'll bet this heralds activist rulings re Trump's tax returns, though. Call me cynical.I think it’s more accurate that he doesn’t even pretend to care about LGB rights, for or against, while he record on trans issues is much worse.
Will this new ruling affect that executive order?
Looks like Roberts is turning into a Souter type justice in some cases.
Even more surprising that it was 6-3, written by Gorsuch (!)
Brian
Out of curiosity, how do you figure? My understanding is that it was uniformly true that the courts of appeals concluded that Title VII did not cover discrimination on the basis of sexual orientation. The Second Circuit’s Zarda case had to overturn (en banc) long-standing circuit precedent to conclude that it did. From, at least, 1979 through 2015 or so, it was a pretty universal understanding. I would think, if anything, the stare decisis argument would weigh against today’s decision.
Which doesn’t have a whole lot to do with the merits of the case, but I’m curious about your reasoning.
I really don’t think that this is so surprising.
Justice Gorsuch is not really a conservative. Yes, he might be considered somewhat “conservative” in terms of his legal approach, his originalism, but it doesn’t make him conservative in a political or a social sense, at least not in the way that some of the other justices are.
There’s a whole lot of people on the left who have assumed, from the beginning, that Gorsuch was going to be a disaster for left and liberal policies because he was supported by the Federalist Society and nominated by Trump, but that’s not really supported by his appeals court work, and it’s also not the way he’s been ruling. He’s far more libertarian than conservative in his thinking, which means that liberals and lefties will probably love some of his rulings, and hate others. Same with conservatives, plenty of whom are probably already lining up the torches and pitchforks over this decision.
I’m not saying that I like all of his voting record, and he’s been in the majority on some decisions that I strongly disagree with, on both political AND legal grounds, but I think he’s a thoughtful and committed and incredibly well-qualified person, and I think he is, in general, very concerned to focus on the law and on the particular case in front of him.
One fascinating detail is that one of the plaintiffs in the case is Gerald Bostock. The child poet from Thick As a Brick.
You’d think so, wouldn’t you? But with this malignant administration… I wouldn’t bet on it. They’ll probably try to distinguish between equal protections for work and equal protections for health care.
Dangerous thinking here, in my view. Roberts is a heavy conservative, make no mistake. But he is a judge and justice in the long tradition of justice. He’ll be an activist judge for the Federalist Society when it furthers their goals, but color within the lines when the law is clear.
Gorsuch is a strict constructionist, so it’s not that surprising. I am relieved that shone through in this decision. He looked at the literal text of the 1964 Civil Rights Act that is the original legislation at issue here. It said that, among other things, employers could not discriminate against employees on the basis of sex. While it could (and probably is) argued that “sex” referred merely to traditional genders of male and female as they were best understood in 1964, the bigger picture requires that definition to be flexible within our understandings in 2020 and beyond.
There’s also the bigger picture: How can we claim to be a country where “all men (sic) are created equal,” yet discriminate against anyone on the basis of their gender orientation, however that is defined? Once you’ve bootstrapped that definition past just “men,” then how can there be an exception for any human being?
Falchion, my paragraph above explains my thinking on stare decisis. I take your points re the prior rulings, but I believe any time rulings try to make any person less equal than another, then those rulings are flawed within the meaning of our founding principles. And again, I am speaking as a lay person.
Since 1989 in Price Waterhouse v. Hopkins, the Suprme Court has recognized that sex stereotyping (i/e a woman being denied a partnership opportunity on the basis that she wasn’t “womanly” enough violated Title VII. That line of cases all but mandate that discrimination on the basis of not loving the gender you are supposed to, violates Title VII as well.
I find this issue very interesting because I’m genuinely conflicted on the answer. Your reasoning is why I think Alito is right. You’re making a (persuasive) legislative argument about what protections should be enacted. But the Court is supposed to be trying to determine what protections actually were enacted.
The idea that the use of the “men” in the Declaration of the Independence makes the interpretation of the word “sex” in a 1964 statute a “no brainer” (such that disagreeing with that approach would make you an “activist” who was not doing their “actual job”) because, as a matter of moral principle, the law ought to (and therefore does) cover all forms of discrimination (whether or not in the statute; whether or not the lawmakers intended that) goes against my basic beliefs about the nature of judicial interpretation and, for that matter, the role of the legislative body in a representative democracy.
This, on the other hand, is why I’m inclined to agree with Gorsuch. Of course, there are numerous court of appeals decisions between 1989 and 2015 that don’t conclude that Hopkins mandates today’s result.
My only experience with Title VII was as a district court law clerk about a decade ago. And it was a mess. Because it was well-settled that Title VII did not cover sexual orientation and it was also well-settled that it did cover sex stereotyping and there was not a clear line between the two concepts. You had a whole bevy of decisions where a straight male was (allegedly) discriminated against for being “gay” but it really meant “effeminate” and it seemed to end up turning on whether he actually was gay. This was not a workable standard.
But I don’t know that the solution was obvious, because none of the propositions seem obviously wrong to me. No one in a lawmaking capacity would have reasonably expected the civil right act to cover sexual orientation (and sex and sexual orientation are routinely treated separately under the law – I’m not sure anyone would have expected that it would turn out they were the same thing). But it also seem true that sex stereotyping should be covered. And it’s obviously true that there is considerable overlap between the two concepts.
So really, my quibble is this idea that it was a “no brainer” and that all of those judges on all of those circuit courts for the last 35 years or so were “activists” who were not doing their “actual jobs.”
It certainly wasn’t a “no-brainer”. But I do believe that, logically, it is much more consistent to conclude sex discrimination on the basis of which gender you love is discrimination on the basis of sex. I was heartened that it was a 6-3 opinion.
Right, but your original argument was one about stare decisis. The Supreme Court, is not bound, under the doctrine of stare decisis, to defer to the decisions of circuit courts of appeals. It is, however, generally expected to defer to its own prior opinions. That’s why Price Waterhouse v. Hopkins is relevant here, and all of those appeals court decisions are not.
I went of Facebook after this decision was handed down, expecting to see many of my LGBTQ+ friends celebrating.
Instead, one of my most activist friends wrote on his Facebook timeline:
I was a bit surprised by this, and so read through the thread to see what the problem was. Apparently, for some people, Gorsuch is to be excoriated because the textualist basis for his decision can now be used by Congress to rewrite Title VII in order to exclude gay and transgender people from its protections. Basically, some people are arguing that Gorsuch went out of his way provide Congress a “roadmap” for how to “fix” this decision by amending Title VII.
I think this is a terrible way to analyze the opinion. Gorsuch really had to deal with all of the issues relates to Congress and the passing of Title VII, precisely because the employers themselves had relied heavily on what Title VII said, and what the original intent of Congress (allegedly) was when it passed Title VII. He can’t simply ignore that stuff in the ruling. He had to deal with what Congress did and did not do, and his argument is strengthened when he points out that they COULD have written Title VII differently, but chose not to.
Now, you might see this as giving Congress “a roadmap” to “fix” the ruling, but do you really think that the anti-LGBTQ+ neanderthals in Congress didn’t know that already? That is, even if Gorsuch’s ruling had made no mention at all of Congress’s original intent, and even if he had not engaged at all in a textualist discussion of the limits of Title VII (impossible, given the nature of the case), it would not change the fact that Congress can, if it so chooses, make modifications to Title VII that would explicitly exclude certain groups from its protections.
And this is true of EVERY SINGLE Supreme Court decision that is based on a statutory interpretation. Every time the Supreme Court interprets a law made by Congress, if Congress doesn’t like the outcome, Congress can “fix” the ruling by amending the relevant law to explicitly circumvent the Court’s interpretation. Congresscritters know this; their staffs know this; their lawyers know this. Do you really think that the bigots in Congress wouldn’t have known this already, if Gorsuch hadn’t informed them of it in his decision?
In fact, I’d be willing to bet that, ever since the Supreme Court granted cert on this case, there have been Republican members of Congress drafting amendments to Title VII that would explicitly remove protections for gay and transgender people. Those amendments will probably now be introduced on the floor of the House and the Senate, and what Gorsuch said or didn’t say in his opinion wouldn’t change that one bit.
Call me a naive optimist, but I don’t believe that the House, controlled by Democrats, is about to write a law that would change Title VII to explicitly exclude LGBTQ+ people from its protections, and I even think that such a law would have trouble in the Republican-controlled Senate, because there might be enough moderates to prevent it. There are still far too many bigots and assholes in the United States, but at least this ruling confirms the protections of Title VII, which is something that a finding for the employers would not have done.
One could still have hoped for a decision based on Constitutional principles, which could not be negated by further ordinary legislation, instead of a decision based on an ordinary law.