A Stunning Supreme Court Win and the Work Ahead
Conservatives surprise us, but further litigation and the Equality Act still needed
BY ARTHUR S. LEONARD
The Supreme Court’s
June 15 ruling that Title
VII of the 1964 Civil
Rights Act bans employment
discrimination against
people because of their sexual orientation
or gender identity was the
fi fth landmark in a chain of important
rulings dating back to 1996,
continuing the high court’s crucial
role in expanding the rights of LGBTQ
people.
Donald Trump-appointee Neil
Gorsuch wrote the opinion in
Bostock v. Clayton County, joined
by Chief Justice John Roberts (a
George W. Bush appointee), and
the four justices appointed by
Democratic presidents: Ruth Bader
Ginsburg and Stephen Breyer (Bill
Clinton) and Sonia Sotomayor and
Elena Kagan (Barack Obama).
Samuel Alito, appointed to the
court by George W. Bush, wrote
an outraged dissenting opinion,
joined by Clarence Thomas, who
was appointed by George H.W.
Bush. Trump-appointee Brett Kavanaugh
penned a more temperate
dissent, concluding with a surprising
salute to this milestone for the
LGBTQ rights movement.
Gorsuch’s authorship of the majority
opinion caught many by surprise,
since he is an acolyte of the
late Justice Antonin Scalia, whom
he replaced on the court. Despite
Scalia’s avowed commitment to
many of the principles of judicial
interpretation that Gorsuch
embraces, one could not imagine
Scalia writing such an opinion, especially
in light of the vitriolic dissenting
opinions that he wrote in
all four prior landmark cases.
Since Roberts voted with the
majority of the court, he was in
the position to assign Gorsuch the
opinion. Had this been a 5-4 ruling
without Roberts, Ginsburg, the senior
justice in the majority, would
have decided who would write for
the court.
The 1996 landmark LGBTQ
rights ruling was Romer v. Evans,
a decision that established for
LGBTQ activists demonstrated in Washington the day of the Supreme Court arguments last fall.
the fi rst time that a state’s discrimination
against “homosexuals” violated
the 14th Amendment’s equal
protection clause, striking down a
homophobic amendment Colorado
voters had added to their state constitution
that barred any jurisdiction
from providing anti-discrimination
protection to gay people.
The second landmark was Lawrence
v. Texas, a 2003 decision declaring
that a state law making gay
sex a crime violated the guarantee
of liberty in the 14th Amendment’s
due process clause, and overruling
a 1986 decision, Bowers v. Hardwick,
which had rejected such
a challenge to Georgia’s sodomy
statute.
The third landmark, United
States v. Windsor, held in 2013
that the federal government must
recognize same-sex marriages
that states had authorized, striking
down Section 3 of the 1996
Defense of Marriage Act. The
court found that this violated the
Fifth Amendment due process and
equal protection rights of samesex
couples.
The fourth and most recent landmark,
Obergefell v. Hodges, held in
2015 that gay people enjoyed the
same fundamental right to marry
that had previously been guaranteed
to straight people under the
14th Amendment’s due process
and equal protection clauses.
In each of these cases, Justice
PHOTO DONNA ACETO
Anthony Kennedy, a Ronald Reagan
appointee, wrote for the court.
The decisions were noteworthy in
being the product of an otherwise
conservative court whose Republican
appointees outnumbered the
Democratic ones. In the Windsor
and Obergefell decisions, Kennedy
was the only Republican appointee
to side with the Democratic
appointees to make up the court’s
5-4 majority.
The Bostock decision, incorporating
two other cases, Altitude
Express v. Zarda and R.G.
& G.R. Harris Funeral Homes v.
Equal Employment Opportunity
Commission (EEOC), was the
fi rst major LGBTQ rights decision
since Kennedy retired and Trump
made his second court appointment,
seemingly locking in a solid
conservative majority that was expected
not to be so receptive to the
queer community.
Consequently, when the court
announced more than a year ago
that it would review these three
cases, tremors ran through the
LGBTQ legal community. Although
progress had been made
in persuading the Obama administration
— including the EEOC —
and the lower federal courts that
Title VII’s ban on “discrimination
because of an individual’s sex”
could be interpreted to forbid discrimination
because of sexual orientation
CIVIL RIGHTS
or gender identity, it was
diffi cult for people to count a fi fth
vote to add to the four Democratic
appointees.
Roberts had emphatically dissented
from the Windsor and
Obergefell rulings, and LGBTQ
rights groups had strongly opposed
the nominations of Gorsuch
and Kavanaugh, based on
their extremely conservative records
as court of appeals judges.
Nobody thought it possible that
Alito or Thomas would vote for
the employees in these cases, and
Kavanaugh, like Gorsuch, was a
question mark.
There was a big difference
between the earlier landmark
cases and this case. The earlier
cases involved constitutional interpretations
of due process and
equal protection rights, and were
decided, in sometimes quite emotional
opinions, by Kennedy, based
on concepts of human dignity and
equality. The Bostock case, by contrast,
was a matter of statutory interpretation.
Perhaps surprisingly, two of the
most ardent “textualists” on the
court, Trump’s appointees Gorsuch
and Kavanaugh parted company
about how to apply that approach
in determining the meaning of the
55-year-old Civil Rights Act.
Textualists contend that statutory
interpretation is a matter of
fi guring out what the meaning of
statutory language was at the time
it was adopted. Extraneous information
— such as congressional
committee reports, hearing transcripts,
speeches on the fl oor of
Congress, or statements inserted
into the Congressional Record —
are generally rejected by textualists,
who argue, as Scalia memorably
wrote in a 1998 opinion, also
involving Title VII and sex discrimination,
that “it is ultimately the
provisions of our laws rather than
the principal concerns of our legislators
by which we are governed.”
Gorsuch and Kavanaugh (as
well as Alito) swear allegiance to
➤ SCOTUS IMPLICATIONS, continued on p.14
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