LGBT Rights, Guns, and Immigration: Trump, Conservatives Have a Rough Day at the Supreme Court
By: The Shore Report
Tags: Guns, LGBTQ, Supreme Court, Immigration

Protesters rally in front of the Supreme Court on Oct. 8, 2019, as it hears arguments on whether gay and transgender people are covered by a federal law barring employment discrimination because of sex. Photo By Bill Clark/CQ-Roll Call, Inc/Getty Images.

Today the Supreme Court issued a landmark ruling, affecting millions of LGBT people, declaring that federal civil rights law protects gay, lesbian, bisexual, and transgender individuals from employment discrimination. President Trump’s first appointee Neil M. Gorsuch authored the opinion and Chief Justice John G. Roberts joined making it a 6–3 ruling. Justice Samuel A. Alito wrote a dissent which Justice Thomas joined and Justice Brett M. Kavanaugh wrote a separate dissent.

Justice Anthony M. Kennedy — who retired two years ago — wrote the opinion in the four other major pro-LGBT rights Supreme Court cases, including Obergefell v. Hodges (2015), which held that same-sex marriage is constitutional under the Fourteenth Amendment. While Kennedy was conservative on many things, he was almost always socially liberal on cases involving abortion, LGBT rights, and affirmative action. That’s why Gorsuch, a much more conservative jurist, writing the opinion here was a surprise to many.

Justice Gorsuch’s judicial philosophy is known as textualism — the idea that a judge only looks at the text of the Constitution or a statute, not what the lawmakers meant or how society may have evolved since the law was written. The LGBT employees who sued intentionally presented a textualist argument last October, hoping they could pick off Gorsuch and secure a victory.

The employees — a gay man who was fired and a transgender woman who was fired — essentially argued sex is inextricably linked to sexual orientation and gender identity. Even though those words (or “gay” or “transgender”) are not written in Title VII of the Civil Rights Act of 1964, if an employer fires someone who is gay or transgender they are discriminating because of one’s sex, they argued. A key part of their argument also centered on a 1989 Supreme Court decision that said federal law protected against discrimination based on sex stereotypes (i.e. being too feminine or masculine for a particular sex).

Justice Gorsuch spent the beginning of his smooth 29-page opinion asking and answering what the text of Title VII meant, what “discriminate” meant then and now, explaining what “sex” meant and what Title VII said about it. Sure, Congress could have written it differently or amended it later to clearly state the law prohibits discriminating against gays and transgender people, but he repeatedly returned to the same conclusion: “An employer who fires an individual merely for being gay or transgender defies the law,” and he illustrated this using a few examples.

Summary of Justice Neil Gorsuch’s opinion.

Let’s say Hannah is fired for being insufficiently feminine and Bob is fired for not being masculine enough. “An employer who fires both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability… an employer who fires both Hannah and Bob for being gay or transgender does the same,” Gorsuch said.

What if an employer has two people who are attracted to men and they are materially indistinguishable in all aspects except one is a man and the other is a woman. If the employer fires the man for no reason other than being gay the employer “discriminates against him for traits or actions it tolerates in its female colleague.”

If an employer fires a transgender person who identified as male at birth but now identifies as female, but keeps the employee who identified as female at birth, the employer discriminates against a transgender individual for traits or actions it tolerates in cisgender person. “The individual employee’s sex plays an unmistakable and impermissible role in the discharge decision” Justice Gorsuch wrote.

He also relies on Supreme Court precedent invoking cases that involved sex and Title VII. Oncale v. Sundowner Offshore Services, Inc. (1998), a case in which a man alleged he was singled out by male co-workers for sexual harassment, is most notable. The Court said it was irrelevant that members of the same sex committed the harassment and the unanimous ruling held because the harassment would not have taken place but for his sex a Title VII claim existed.

The employers argued in a normal conversation, sexual orientation and gender identity would be invoked as reasons for firing, not sex discrimination. But Gorsuch rebuked that, stating these types of conversations do not control Title VII’s legal analysis and it misunderstands what kind of cause the law is looking for in a Title VII case.

The employer also tried arguing an employer could refuse to hire someone without knowing their sex by redacting any information about sex on an application. The applications, because of a box to check about sexual orientation/gender identity, would disclose whether someone is gay or transgender but not reveal their sex. Isn’t that proof the employer doesn’t discriminate against sex? Gorsuch rejected that. He says imagine for a second the applicant does not know what gay or transgender means and they must write out how they would check the box without using the words man, woman, sex, or a synonym. He said that is impossible.

Justice Gorsuch said the “because of” language in Title VII invokes a “but-for cause” test, meaning a particular outcome would not have happened “but for” the purported cause. Or, it tells us to change one thing at a time and see if the outcome changes. If it does, we have found a “but-for cause.” He uses a practical example to illustrate this test.

It’s a cool day outside and inside your home it is warm so you open a window. The cold weather and the heat inside your room are both but-for causes in your decision to open the window, Gorsuch wrote. You would still open the window, he said, if it was hot outside and cold in your room. For gay employees, male sex and attraction to men are but-for causes that combine to get them fired. The same applies to females who are also attracted to women, Gorsuch said.

Gorsuch dismissed claims made by some that the ruling sweeps so broadly that after today sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable. He noted that those questions weren’t before the Court and it did not prejudge those at this time. He also brushed aside concerns involving religious liberty as this case had nothing to do with religion though he wrote the Court could revisit a scenario in which the Religious Freedom Restoration Act bumped heads with Title VII.

Justice Alito wrote an angry, 100+ page long dissent that is filled with such contempt that if times were normal, he might have read it aloud from the bench. In it he claims the Court passes this ruling off as textualism but warns us not to be fooled. He claims the ruling betrays textualism, which is hilarious because Alito has called himself a “practical originalist” and never purported to be a textualist himself.

Part of Justice Samuel Alito’s fiery dissent.

Justice Kavanaugh disagreed with the majority’s view and decried legislating from the judiciary, but did so in a measured and calm way. He even congratulated those who are celebrating today’s ruling — though he left out trans people — saying, “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… and can take pride in today’s result.”

The conclusion of Justice Kavanaugh’s more polite dissent.

Conservatives received bad news before the Title VII decision came out because the Supreme Court rejected a challenge to California’s so-called sanctuary state law, enacted in 2017. The law is designed to prohibit law enforcement officials from aiding federal agents in taking custody of immigrants as they are released from jail. The Trump administration’s challenge was launched five million years ago, back when Jeff Sessions was Attorney General. While we do not know the vote of the denial to hear the case, we know justices Alito and Thomas — the most conservative justices — publicly dissented and would have heard the case.

The justices also rejected a case that would revisit the concept known as “qualified immunity,” which allows lawsuits involving excessive force to be dismissed at an early stage before a trial. Qualified immunity has been in the news recently with the thousands of anti-police brutality protests happening around the country in the last three weeks. This is actually an issue liberal and conservative lawyers share common ground on but the Court isn’t interested in reviewing it. Congress will need to act to end it.

In news that flew under the radar, the Supreme Court rejected ten (!) gun rights cases, upsetting many conservative pundits, politicians, and lawyers around the country. There were challenges pending to assault weapons bans, open carry laws, and more but the Court dismissed all of them.

It only takes four votes to grant review of a case at the Supreme Court. This is the most conservative the Court has been in multiple generations, so how could there not be enough votes to hear these Second Amendment cases? Well, there probably are because in New York State Rifle & Pistol Association (2020), Thomas, Alito, Gorsuch, and Kavanaugh all said in a dissent that they would grant cert in future Second Amendment cases. What today’s news implies is these four men thought they could not get Chief Justice John Roberts’ vote on any of these cases, which is remarkable.

In the Title VII cases, very few expected Roberts would be in the majority because of how he appeared to favor the employers at oral arguments, but he may have done it strategically. If the Chief Justice is in the majority he assigns the opinion and if he is in the minority, the senior most associate justice (currently Ruth Bader Ginsburg) assigns the opinion. It’s plausible he joined the majority so he could assign the opinion to Gorsuch, ensuring the opinion was by a conservative rather than letting Ginsburg or another member of the liberal wing author the opinion.

The tragic thing about today’s outcome is Aimee Stephens, the transgender woman who sued R.G. and G.R. Harris Funeral Homes, died from complications of kidney failure at the age of 59 one month ago. Her bravery to sue and fight for equal rights will protect millions of transgender people both in the present and for years to come.

Despite today’s decision, many queer activists and advocates for LGBT rights have said some variation of “This is a victory but we have not won.” That is correct. Black trans people are still getting murdered (something SCOTUS obviously cannot fix), conversion therapy is still legal in many places, and in the public sphere there are still laws that discriminate against LGBT people. But many are, of course, beyond elated — for a look at what that unbridled joy looks like, see Chase Strangio’s Twitter feed. He is one of the trans ACLU lawyers who represented Aimee Stephens in Court.

There has been chatter on various social media today from some conservative lawyers or pundits claiming Gorsuch betrayed textualism or “the conservative legal movement is dead.” These people are completely blinded by either partisanship and/or hatred of the change in society. Gorsuch will stridently vote against abortion rights, in favor of religious liberty, and various other legal conservative goals down the line, but God forbid he affirms employment discrimination against LGBT people is illegal. Suddenly he is a traitor to your movement. David French, prominent conservative lawyer, said “Philosophies produce tendencies, they do not guarantee outcomes. And for most of the Court that philosophy is not simply, ‘I do what my team wants.’”

Today was an awful day for President Trump’s administration and many conservatives at the Supreme Court, but not at all a death knell for the conservative legal movement. There will probably be several cases in the near future which please conservatives and go as expected. Some of them may be this Thursday when we get more opinions.