What a relief. Monday’s Supreme Court decision that protects Americans from being fired because of sexual orientation actually turned out to be fair. Even better, I agreed with it.
Advocates for gay and lesbian rights, among other liberal activists, warned that President Donald Trump’s election would lead to conservative judges and rollbacks in such landmark victories as the high court’s decision to legalize same-sex marriage in 2015 under President Barack Obama.
That fate appeared to be confirmed with the confirmation of scores of conservative judges and, on the high court, new Justices Neil Gorsuch and Brett Kavanaugh.
But celebration on the political and religious right turned to angry cries of betrayal after the 6-3 decision written by Gorsuch and joined by Chief Justice John Roberts and the court’s four remaining liberals.
In the case of Bostock v. Clayton County, Georgia, the court ruled that Title VII of the 1964 Civil Rights Act, which bars employment discrimination “because of sex” also protects workers who are lesbian, gay, bisexual or transgender.
With elegant simplicity and straightforward clarity, Gorsuch explained “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
And if the employer had additional reasons for the firing? No matter, the decision says in a line suitable for immortality. “Intentionally burning down a neighbor’s house is arson, even if the perpetrator’s ultimate intention (or motivation) is only to improve the view.”
Gorsuch’s crisp clarity sent some clear signals – yet one must cautiously note, no guarantees regarding future outcomes. He laid his argument on textualism, the popular conservative theory that judges should look to the plain text of the law.
That matters in a subject such as LGBTQ rights, since few people were talking about LGBTQ rights in 1964. Yet, at least since the Stonewall riots broke out during a police raid on a gay and transgender bar in New York and launched the gay and lesbian rights movement in 1969, it increasingly has become a matter of common sense that gender protections should include LGBTQ people.
Looking back, it is all the more ironic to recall that “sex” was included in the law, which was primarily aimed at racial discrimination, as a sort of last-minute poison pill. Staunch Virginia segregationist Rep. Howard Smith slipped it in, figuring that his fellow lawmakers would see the protection of women’s rights as way too extreme. Fortunately, the times were a-changing faster than he realized.
But now, we have the era of Donald Trump vowing under his “Make America Great Again” slogan to change the times back. Trump, who often seems to be more familiar with breaking the Ten Commandments than citing them, nevertheless appealed heavily to religious conservatives. Among other smart moves, he turned to the right-leaning Federalist Society for court recommendations. The phrase “But, Gorsuch ...” is routinely cited by evangelicals when asked why they give more than 80% approval to Trump in polls.
And he remembers them. Team Trump has issued a flurry of regulations to curtail protections for transgender employees of government contractors and the right of transgender students to use a bathroom or locker room corresponding with their gender identity. Last Friday the Trump administration took away requirements that doctors offer, and insurers cover, medically appropriate treatment for transgender patients.
Now comes the backlash against this Gorsuch decision, which already is being compared to the backlash against President George H.W. Bush from the right after the Planned Parenthood v. Casey decision in 1992, when Republican appointees Anthony Kennedy, David Souter and Sandra Day O’Connor joined with the court’s liberals to uphold women’s reproductive rights.
Some conservatives were calling for impeachment after Chief Roberts’ deciding vote in 2012 that saved the Affordable Care Act, better known as Obamacare, along with health insurance coverage for millions of Americans.
But the high court also likes to save the best – or most controversial – cases for last. Still to come are cases about abortion, separation between church and state, and the president’s right to keep his financial records away from investigators.
Perhaps then we will know whether the Roberts court can maintain its reputation for courageous integrity across partisan lines – or whether, depending on whose side you’re on, we’re being set up for big disappointment.