➤ SCOTUS IMPLICATIONS, from p.5
this principle, but it took them in
different directions in this case.
Gorsuch, who had signaled this
result as a possibility during the
oral argument on October 8 last
year, inclined toward a literalistic
approach to the words of Title
VII. While asserting he was trying
to determine “the ordinary public
meaning” of the words at the time
they were enacted, he rejected the
argument that this meant that
sexual orientation and gender
identity could not possibly be covered.
Instead, he was persuaded
by arguments and examples that
the 1964 Act — as properly understood
— has always prohibited
discrimination against people because
of their “homosexuality” or
“transgender status.”
He wrote, “an employer who intentionally
treats a person worse
because of sex — such as fi ring
the person for actions or attributes
it would tolerate in an individual
of another sex — discriminates
against that person in violation of
Title VII.”
Having accepted that point, he
found persuasive examples of two
employees, a man and a woman,
with equally good qualifi cations,
work records, and so forth, both
of whom are attracted to men. The
employer will hire the woman but
reject the man. Because the employer
will tolerate attraction to
men by women but not by men,
the employer’s refusal to hire the
man is discrimination because of
his sex.
Stating his holding more generally,
Gorscuh wrote, “An employer
violates Title VII when it intentionally
fi res an individual employee
based in part on sex. It doesn’t
matter if other facts besides the
plaintiff’s sex contributed to the
decision.
And it doesn’t matter if the employer
treated women as a group
the same when compared to men
as a group.” So the argument that
since both gay men and lesbians
— members of different sexes —
face discrimination there is no discrimination
“because of sex” is one
Gorsuch rejects.
Responding to the argument
that this could not possibly be the
meaning of a statute passed in
1964, Gorsuch insisted that it has
always been the meaning, it just
was not recognized as such. He
characterized it as the “elephant
in the room” that everybody pretended
was not really there. It was
now time to recognize the presence
of the elephant.
Alito unkindly suggests in
his dissent that this conclusion
is “preposterous.” His focus
on “original meaning,” which he
documents at length, shows as a
matter of the historical record that
in 1964 gay people were widely reviled
as sick criminals, so it is impossible
to retroactively read the
statutory language from that year
as forbidding discrimination on
this ground.
Furthermore, he pointed out,
as of 1964 the public’s awareness
of transgender individuals was
slight at best. Indeed, the very
terms “transgender” and “gender
identity” were not even used until
much later. That a statute enacted
in 1964 could be interpreted as
prohibiting discrimination on this
ground could not possibly accord
with its “ordinary public meaning”
at that time, in Alito’s view.
Reading Alito’s opinion is tough,
given how graphic his recounting
of the horrendously homophobic
views of the government and the
public toward LGBTQ people were
in 1964, but he recites them to
make the point that prohibition of
discrimination on these grounds
could not possibly be a correct textualist
interpretation.
He started his dissent pointedly
by saying that the court was
engaged in legislation, not interpretation.
And he concentrated
on shooting holes in Gorsuch’s examples
of the situations that led
him to conclude that discrimination
because of homosexuality or
transgender identity is, at least in
part, sex discrimination.
Alito wandered far from the central
question in the cases, interjecting
discussion of issues likely
to arise as a result of the decision,
such as hardship for employers
with religious objections to homosexuality
or transgender identity
(like the employer in the Harris
Funeral Homes case), and objections
by co-workers to transgender
employees using bathrooms and
locker rooms.
Gorsuch rejoined that these
were questions for another day, not
immediately relevant to decide the
three cases. Alito was defi nitely
putting down markers for the future
cases that the court may confront.
Kavanaugh makes some of
the same points as Alito in his
dissent, but it is notable that he
did not join that dissent. This may
be a generational thing. Gorsuch
and Kavanaugh are considerably
younger than Alito. By the time
they were in college and law school,
there were out gay people around
and, on a personal level, they undoubtedly
both agreed that as a
matter of politics it would be appropriate
for Congress to ban such
discrimination. They just differed
on whether the court could reach
the same result through interpretation
of a 1965 law.
Kavanaugh noted that threejudge
panels of 10 circuit courts
of appeals had rejected this interpretation.
Thirty judges out of 30,
he wrote, more than once in his
opinion, as if the unanimity of an
incorrect interpretation somehow
turned it into a correct interpretation.
Obviously, these judges did
not recognize the “elephant in the
room!”
For Kavanaugh, this was a really
a “separation of powers” issue. The
question for the court, he wrote,
was “Who decides?” Congress has
the power to make law, while the
courts are limited to interpreting
the statutes passed by Congress.
Agreeing with Alito, he asserted
that the court’s decision was violating
the separation of powers.
But Kavanaugh concluded his
dissent by revealing his political,
as opposed to interpretive, preferences.
“Notwithstanding my concern
about the Court’s transgression
of the Constitution’s separation
of powers, it is appropriate to acknowledge
the important victory
achieved today by gay and lesbian
Americans,” Kavanaugh wrote.
“Millions of gay and lesbian Americans
have worked hard for many
decades to achieve equal treatment
in fact and in law. They have exhibited
extraordinary vision, tenacity,
and grit — battling often steep odds
in the legislative and judicial arenas,
not to mention in their daily
lives. They have advanced powerful
policy arguments and can take
pride in today’s results. Under the
Constitution’s separation of powers,
however, I believe that it was
Congress’s role, not this Court’s, to
amend Title VII.”
Kavanaugh’s dissent largely ignored
transgender people, and his
omission of them is inexplicable
in light of the scope of the court’s
opinion and their activist role in
recent decades in seeking protection
against discrimination.
Gorsuch’s majority opinion
has the immediate effectof extending
protection to the majority
of states that do not ban sexual
orientation or gender identity discrimination
in their civil rights
laws, but there remain signifi cant
gaps in protection.
Title VII applies to employers
with at least 15 employees, state
and local government employees,
and federal employees. It does not
apply to the uniformed military (so
this decision does not directly affect
Trump’s transgender service
ban), or to religious organizations
in their policies about “ministerial
employees.”
Furthermore, as Gorsuch noted
briefl y but Alito expounded at
length, the Religious Freedom Restoration
Act (RFRA) might be interpreted
to “supplant” the Title VII
protections in certain cases.
The potential application of
RFRA is worth noting. Reading
Gorsuch’s opinion, one might immediately
identity this as a sort
of “poison pill.” In its 2014 Hobby
Lobby decision, the Supreme Court
suddenly discovered that business
corporations could argue that a
policy mandated by a federal law
unduly burdened their free exercise
of religion, and so they might
thereby escape compliance with the
law (in that case, the contraception
coverage requirement on employer
health plans under Obamacare).
Although Alito’s majority opinion
in Hobby Lobby rejected the idea
that an employer could make such
an argument in defense against a
racial discrimination claim, Ginsburg
pointed out in her dissent
that Alito’s opinion failed to address
the issue of sexual orientation,
pointing to cases where businesses
claimed a religiously-based
right to discriminate against gay
people.
This is an issue that is hardly
settled, and Gorsuch’s reference to
➤ SCOTUS IMPLICATIONS, continued on p.15
June 18 - June 24, 2 14 020 | GayCityNews.com
/GayCityNews.com
