Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “because of sex.”
By Amy Howe (originally published at Howe on the Court)
Today the Supreme Court, by a vote of 6-3, ruled that even if Congress may not have had discrimination based on sexual orientation or transgender status in mind when it enacted the landmark law over a half century ago, Title VII’s ban on discrimination protects gay, lesbian and transgender employees. Because fewer than half of the 50 states currently ban employment discrimination based on gender identity or sexual orientation, today’s decision is a major victory for LGBT employees.
The question came to the court in three different cases, all argued on the same day last October. Donald Zarda, a skydiving instructor, and Gerald Bostock, a child-welfare-services coordinator for Clayton County, Georgia, filed lawsuits in federal court alleging that they were fired because they were gay, which violated Title VII. In Zarda’s case, which was continued by his estate after he died in a base-jumping accident in 2014, the U.S. Court of Appeals for the 2nd Circuit agreed with Zarda that Title VII bars discrimination based on sexual orientation. But the U.S. Court of Appeals for the 11th Circuit came to the opposite conclusion in Bostock’s case.
The Equal Employment Opportunity Commission filed the third lawsuit, involving the rights of transgender employees, in federal district court in Michigan against R.G. & G.R. Harris Funeral Homes after the funeral home fired Aimee Stephens, a funeral director and embalmer who announced that she would begin living as a woman. (Stephens died on May 12 from complications from kidney failure, but her wife, Donna, took her place in the lawsuit.) The district court agreed with the funeral home that Title VII does not protect transgender employees from discrimination, but the U.S. Court of Appeals for the 6th Circuit reversed. The justices agreed to hear all three cases last spring.
Justice Neil Gorsuch framed the question before the court as a straightforward one: “Today,” he wrote, “we must decide whether an employer can fire someone simply for being homosexual or transgender.” The answer to that question, he continued, “is clear.” When an employer fires an employee “for being homosexual or transgender,” that employer “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.”
Gorsuch acknowledged that, when Congress enacted Title VII, it might not have expected “this particular result.” But, he added, Congress probably had not anticipated “many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees.” The “limits of the drafters’ imagination,” Gorsuch concluded, “supply no reason to ignore the law’s demands.” When the words of a law point in one direction, while other considerations point in the other, “it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”
Gorsuch’s opinion was joined by Chief Justice John Roberts and by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justice Samuel Alito filed a sharp dissent that was joined by Justice Clarence Thomas. Alito wrote that there “is only one word for what the Court has done today: legislation.” He noted that last year the House of Representatives passed a bill that would make clear that Title VII’s ban on sex discrimination includes discrimination based on sexual orientation and gender identity, but that the bill stalled in the Senate. Today, Alito contended, his colleagues in the majority have “essentially taken” that bill “and issued it under the guise of statutory interpretation. A more brazen abuse of our authority,” Alito suggested, “is hard to recall.” The real question before the court, Alito stressed, is “not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not,” Alito argued.
Justice Brett Kavanaugh filed his own dissenting opinion. He framed the question before the court as “whether Title VII should be expanded to prohibit employment discrimination because of sexual orientation.” In his view, “the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.” And, he added, “when this Court usurps the role of Congress, as it does today, the public understandably becomes confused about who the policymakers really are in our system of separated powers, and inevitably becomes cynical” about the idea that judges make their decisions based on the law, rather than on their personal preferences. “The best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk, even in the hard cases when we might prefer a different policy outcome.”
Kavanaugh concluded by acknowledging “the important victory achieved today by gay and lesbian Americans. 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 result.” But Kavanaugh reiterated his belief that Congress, rather the Supreme Court, should have been the source of that result.
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Full opinion here: https://www.supremecourt.gov/opinions/1 ... 8_hfci.pdf
TL;DR - Justice Gorsuch and Chief Justice Roberts sided with the liberal majority as a matter of precedent and the plain meaning of the statute as enacted. The remaining conservative bloc is so whiny and butthurt, their dissents are longer than the opinion itself, which, once you're familiar with the background of it all, the majority opinion reads pretty straightforward.
I had a feeling that either Roberts or Gorsuch would be the deciding vote; I certainly didn't expect both of them, but I'm not complaining! I do have to add this part re: Justice Kavanaugh's dissent:
This same bullshit came up in Obergefell (interestingly enough, Chief Justice Roberts sang the same tune at the time, but at least he undersands the concept of stare decisis and has since changed his tune). If you read Gorsuch's opinion, he addresses specific points brought up by Kavanaugh and Alito in their dissents....In his view, “the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.” And, he added, “when this Court usurps the role of Congress, as it does today, the public understandably becomes confused about who the policymakers really are in our system of separated powers, and inevitably becomes cynical” about the idea that judges make their decisions based on the law, rather than on their personal preferences. “The best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk, even in the hard cases when we might prefer a different policy outcome.”
But I think Justice Kennedy said it best:
"There may be an initial inclination to await further legislation, litigation, and debate, but referenda, legislative debates, and grassroots campaigns; studies and other writings; and extensive litigation in state and federal courts have led to an enhanced understanding of the issue. While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right. - Obergefell v. Hodges, 576 U. S. ____ (2015)
