Supreme Court - LGBT Decision

By Hubert Plummer posted 06-15-2020 10:54 PM


The wheels of justice grind slowly but today some good news finally came out of the Supreme Court.  On Feb 26, 2018[i] and April 23, 2019[ii] I wrote about cases involving job discrimination for LGBT employees.  Circuit courts had ruled that the Title VII of the Civil Rights Act protected employees who were discriminated against based on their sexual orientation.  The Second and Seventh Circuits had agreed on this while the Eleventh indicated it would rule this way.  Then the Supreme Court agreed to hear three of these cases Altitude Express v. Zarda,[iii] Bostock v. Clayton County, Georgia,[iv] and R.G. & G.R. Harris Funeral Homes v. EEOC,[v]

The Civil Right Law prohibits discrimination of the basis of sex.  It makes no mention of sexual orientation or sexual identity.  The courts held that discrimination on orientation or identity IS sexual discrimination since it these issues are directly tied to sex.

The cases were combined into one opinion under Bostock v Clayton County Georgia.[vi]  The court ruled 6-3 in favor of the employees with Justices Roberts and Gorsuch joining the more liberal members of the court.  Justice Gorsuch wrote the opinion and summed it up in the following words:

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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.

Justices Alito and Kavanaugh wrote dissents saying that while LGBT people should not be treated any differently than any other person, this decision was “legislation” and the Congress has the power to pass laws for these protections and they didn’t.  The Courts shouldn’t be “making law”.

Justice Alito dissented on a slightly different approach saying the question 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.”

Title VII of the Civil Rights Law uses the language “because of such individual's race, color, religion, sex, or national origin.”[vii]  So the majority held that the term “sex” included orientation and identity while the dissent argued that if Congress wanted to protect orientation and identity they would have said so. 

This is a long time difference between sides of the Court and idea of whether the Constitution is a “living” document.  This case is interpreting a law, not the Constitution, but the concept is the same.  Did Congress, in 1964, think orientation and identity were included in “sex” or does the law evolve with time to encompass current thinking?

The same arguments rage in many areas.  In gun rights cases, did the framers intend to include assault type weapons in their concept of “right to bear arms” or did they just contemplate muskets and swords?  In Griswold v. Connecticut[viii] the majority found a penumbra of rights to privacy throughout the constitution and used that to strike down a law making personal contraceptives illegal.  That right to privacy, while never explicitly stated in the Constitution, has persisted and was used in many later cases including Roe v. Wade

Originalists argue that the Constitution should be interpreted as written and as the framers intended with the framers thoughts.  What did Jefferson and Madison think of religion and guns and personal liberty?  The Living Constitution also known as loose constructionism says that while the Constitution can be amended, it should have an interpretation that shifts over time as the cultural context changes.[ix]

In a case involving the First Amendment right of free speech and violent video games, do we have to decide what John Hancock thought of video games or should we use current societal mores to the issue?

Justice Scalia was staunch originalist as is Justice Thomas.  Justices Alito, Kavanaugh and Roberts a little less so.  Justice Gorsuch was generally thought to be an originalist, but may be a bit less so as well.

As I stated in the beginning, Justice can take a long time.  These cases started as early as 2010. It took ten long years to get to this final decision. 










The author[s] is solely responsible for this blog submission.  It does not represent the position of the New York State Bar Association or its Committee.