With LGBT ruling, Supreme Court hands liberals a surprise victory
Two of the court’s Republican appointees joined the
court’s Democratic appointees to deliver an unexpected 6-3 triumph for
LGBT advocates.
LGBT rights advocates triumphed at the
Supreme Court Monday, winning a sweeping decision from the justices
that protects gay, lesbian and transgender employees from being
disciplined, fired or turned down for a job based on their sexual
orientation.
Two of the court’s Republican
appointees, Neil Gorsuch and John Roberts, joined the court’s Democratic
appointees to deliver the surprising 6-3 victory to those arguing for
anti-discrimination protections
Writing for the court’s majority, the
conservative Gorsuch embraced arguments that seemed radical to many
liberals just a few years ago: that the 1964 Civil Rights Act's
prohibition on sex discrimination in employment also effectively banned
bias based on sexual orientation or gender identity, even though few if
any members of Congress thought they were doing that at the time.
The
decision was a rout for social conservatives and a defeat for President
Donald Trump's administration, which had urged the justices to take a
narrow view of the half-century-old law.
Some
Trump allies immediately denounced Gorsuch's opinion as a betrayal from
the Trump appointee. A top Trump aide quickly criticized the ruling,
but when the president himself was asked about it he offered a mild
response and passed up a chance to try to make political hay out of the
court's decree.
"I've
read the decision," the president said of the various opinions, which
ran to 119 pages in all. "Some people were surprised, but they've ruled
and we live with their decision. That's what it's all about. We live
with the decision of the Supreme Court. Very powerful, very powerful
decision, actually."
While
the cases ruled on Monday garnered less attention than the showdown
five years ago that led to the court's landmark decision finding a
constitutional right to same-sex marriage, the latest ruling could be
even more impactful, providing millions of LGBT Americans with new
workplace rights and ushering in similar legal guarantees of equal
treatment in private businesses, schools and elsewhere.
Yet,
the high court's edict also seemed far less earth shaking than the 2015
ruling, perhaps due to ongoing racial unrest and perhaps because polls
show an increasingly broad consensus in support of LGBT rights.
Explaining
the ruling, Gorsuch said Congress may not have intended to ban
discrimination against gays, lesbians and transgender individuals, but
that the logic of their protection by the statute was inescapable.
"Those
who adopted the Civil Rights Act might not have anticipated their work
would lead to this particular result. Likely, they weren’t thinking
about 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,"
Gorsuch wrote.
"But
the limits of the drafters’ imagination supply no reason to ignore the
law’s demands," he continued. "When the express terms of a statute give
us one answer and extratextual considerations suggest another, it’s no
contest. Only the written word is the law, and all persons are entitled
to its benefit."
LGBT
activists were thought to face an uphill battle at the high court
because Congress has spent more than four decades considering, but
failing to pass, measures intended to expand the coverage of the 1964
law by explicitly adding sexual orientation to the list of protected
traits.
Such
legislation passed the Democrat-controlled House in 2007 and again last
year and was approved by the Democrat-controlled Senate in 2013, with
the latter two efforts also explicitly aimed outlawing workplace
discrimination against transgender people. The bills never cleared both
chambers in the same Congress.
That
Gorsuch wrote the majority opinion was viewed as a major coup by gay
rights advocates. They hoped his professed devotion to “textualism” — an
often literal approach to reading Congressional enactments — would
persuade him to embrace a view that LGBT discrimination is sex
discrimination because it involves treating someone differently at least
in part due to gender.
Gorsuch
did just that, sounding unequivocal in his conclusions about the
half-century-old workplace discrimination ban, known as Title VII.
"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," wrote Gorsuch, an
appointee of President Donald Trump.
Gorsuch
also took a jaundiced eye to suggestions that the court should try to
divine why Congress never passed language explicitly adding LGBT
protections to the workplace discrimination law.
"Speculation
about why a later Congress declined to adopt new legislation offers a
'particularly dangerous' basis on which to rest an interpretation of an
existing law a different and earlier Congress did adopt," he wrote,
quoting a prior case.
Trump adviser Kellyanne Conway initially lamented the ruling, arguing that the court departed from Congress' clear intent.
"We've
had the Civil Rights Act for 56 years. Everybody has understood what it
meant," she said on Fox News Monday. "It's very important though to
stick to a statute or a law as it is written....If people want to change
the law they should go to the Congress. Our Congress doesn't seem to
like to work as hard as the other two branches."
Some
activists who supported Gorsuch as Trump's first Supreme Court nominee
were even more vocal, fuming about his betrayal and arguing he'd cast
aside the legacy of the late Justice Antonin Scalia, whose vacancy
Republicans held open through 2016 so it could be filled by a Trump
nominee.
"Justice
Scalia would be disappointed that his successor has bungled textualism
so badly today, for the sake of appealing to college campuses and
editorial boards," Carrie Severino of the Judicial Crisis Network said on Twitter. "This was not judging, this was legislating—a brute force attack on our constitutional system."
Roberts'
vote to back LGBT rights in the new ruling was also notable, since he
joined the rest of the court’s conservatives in 2015 in vocal dissent
from the same-sex marriage decision.
Because
the decision Monday is a matter of statutory interpretation, it is not
an all-out guarantee of workplace protections for LGBT people in the
future, since Congress is free to tinker with the law. But as a
practical political matter, it seems highly unlikely Congress would
reach a consensus to repeal those rights anytime soon.
Justices
Clarence Thomas, Samuel Alito and Brett Kavanaugh dissented from the
new ruling, arguing that Gorsuch's claimed humility about simply
interpreting the law's language was belied by the huge gulf between what
lawmakers intended and what the court held.
Alito
leveled one of the gravest insults one conservative can train on
another as he accused his colleague of legislating from the bench.
"There
is only one word for what the Court has done today: legislation,"
Alito, wrote in a fiery dissent joined only by Thomas. "The document
that the Court releases is in the form of a judicial opinion
interpreting a statute, but that is deceptive...A more brazen abuse of
our authority to interpret statutes is hard to recall. The Court tries
to convince readers that it is merely enforcing the terms of the
statute, but that is preposterous."
Alito also insisted that textualism doesn't mean reading a statute so literally that the purpose of the authors is ignored.
"It
calls for an examination of the social context in which a statute was
enacted because this may have an important bearing on what its words
were understood to mean at the time of enactment," he wrote.
"Textualists do not read statutes as if they were messages picked up by a
powerful radio telescope from a distant and utterly unknown
civilization."
Kavanaugh's
solo dissent was more restrained in its tone. He said courts must give
force to the "ordinary" meaning of the laws Congress passes, not a
"literal" one.
"Both
the rule of law and democratic accountability badly suffer when a court
adopts a hidden or obscure interpretation of the law, and not its
ordinary meaning," the court's newest justice wrote.
Kavanaugh
said the majority was making "a mistake of history and sociology"
because even a rudimentary look at the motivating forces behind the 1964
law shows that it wasn't seeking to advance gay rights.
"Seneca
Falls was not Stonewall. The women’s rights movement was not (and is
not) the gay rights movement, although many people obviously support or
participate in both," he wrote.
The
Trump stance was a reversal of positions taken during the Obama
administration, when the Equal Employment Opportunity Commission held
that both anti-gay and anti-transgender discrimination violated existing
law, although courts divided on those issues.
Social
conservatives who argued against finding protections for LGBT Americans
in the existing statute sounded dejected Monday about the court's
ruling and warned that it will have unexpected effects.
"Redefining
‘sex’ to mean ‘gender identity’ will create chaos and enormous
unfairness for women and girls in athletics, women’s shelters, and many
other contexts. Civil rights laws that use the word ‘sex’ were put in
place to protect equal opportunities for women," said John Bursch of the
Alliance Defending Freedom.
By contrast, LGBT activists were ecstatic about the high court's decision.
"This is a landmark victory for LGBTQ equality,” said Human Rights Campaign President Alphonso David.
Backers
of the new decision said it could spell doom for some Trump
administration policies, particularly an effort to roll back protections
for transgender individuals seeking health care.
Prior to Monday’s ruling, court
decisions or enforcement authorities in nearly half of U.S. states
interpreted state law to prohibit workplace discrimination on the basis
of sexual orientation or gender identity. In the remaining states, LGBT
workers had no legal protection against being fired, demoted or paid
less on account of those traits.
LGBT individuals in many states still
have no legal protection against other forms of discrimination, such as
in housing or public accommodations, although the new decision could
bolster efforts to win such protection in the courts or in Congress.
"In many aspects of the public square,
LGBTQ people still lack non-discrimination protections, which is why it
is crucial that Congress pass the Equality Act to address the
significant gaps in federal civil rights laws and improve protections
for everyone," David said.
The gay and transgender rights cases
decided Monday have been lingering on the court’s docket for more than
seven months. They were argued last October, on the second day of the
court’s current term.
