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BEN WILLIAMS – The U.S. Supreme Court and sexual orientation

BEN WILLIAMS

At 9 a.m. CST, Monday, June 15, 2020, 21 days into a reenergized civil rights movement, the Supreme Court of the United States released its opinion in Bostock v Clayton County, Georgia. Under neoteric COVID-19 procedures, disseminations of the ruling occurred online rather than being nobly announced by the Justice-author from the Court’s winged, mahogany bench.

Bostock proclaimed a ginormous change in the law – immediate protection under Title VII of the Civil Rights Act of 1964 for homosexual and transgender persons from employment discrimination.

The Consolidated Cases & Certiorari

Although styled as Bostock v Clayton County, Georgia, the ruling involved three separate employment terminations:  a gay employee in Georgia [11th Circuit], a gay employee in New York [2nd Circuit] and a transgender employee in Michigan [6th Circuit].  The 11th Circuit ruled for the employer, and the 2nd and 6th Circuits ruled for the employees.  Exercising its discretion, the Court “granted certiorari … to resolve at last the disagreement among the courts of appeals.”

The Question

The question taken up by the Court was typically narrow and specific: “Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination ‘because of…sex’ within the meaning of Title VII of the Civil Rights Act of 1964.”

The Ruling

In a watershed 6-3 ruling, the Court held that Title VII protected homosexuals and transgenders from discrimination in the workplace. Justice Gorsuch – a former U.S. circuit judge nominated by President Trump in February 2017 and confirmed by the Senate in April 2017 on a largely partisan 54-45 vote – penned the 32 pages of the majority opinion.

The legislation at issue – promoted by President Kennedy before his assassination and signed by President Johnson into law before Gorsuch was born – made it “unlawful … for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

For 56 years, Title VII was interpreted to not provide sexual orientation protection. While conceding that the word “sex” referred “only to biological distinctions between male and female,” the Court seemingly hinged its new expansive interpretation on the “because of” language.  This anodyne phrase, according to the Court, incorporated a “’simple’ and ‘traditional’ standard of but-for causation.”

In Gorsuch’s words: “[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The Court determined the 1964 law all along protected sexual origination and we (and they) just didn’t know it. Gorsuch schools us on the “canon of donut holes” and “no-elephants-in mouseholes canon.” As he sees it, “[t]his elephant has never hidden in a mousehole; it has been standing before us all along.”  One assumes the dissenters resemble three blind mice.

Chief Justice Roberts, a recurring conservative, along with the four traditionally liberal members of the Court – Justices Breyer, Ginsburg, Kagan and Sotomayor – all signed onto Gorsuch’s fertile opinion.

The Dissent

In his dissent, Alito leads with a full-frontal assault: “There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.”

The second-generation immigrant’s forceful dissent doesn’t stop there.  In describing the majority’s “blinkered approach,” he uses colorful language:  “usurping,” “brazen abuse,” “preposterous,” “fooled,” “arrogance is breathtaking,” “stubborn refusal,” “defies belief,” “considerable audacity,” “wild understatement,” “totally disregard,” “jaw dropping statement,” “brusque refusal,” “irresponsible,” and “severe impact.”

Kavanaugh, likely bruised from his televised 2018 confirmation, adopts a more moderate tone.  His primary objection similarly relates to the separation of powers – that the “responsibility to amend Title VII belongs to Congress and the President in the legislative process.”  He points to the first 10 courts of appeals and 30 federal judges to consider the issue, all of which and whom concluded Title VII offered no such protection. He observes it was only in the “last few years” that a few federal courts have embraced “a novel and creative argument.”

Kavanaugh benignantly suggests the majority has “succumbed to ‘the natural desire that beguiles judges along with other human beings into imposing their own views of goodness, truth, and justice upon others.’”

Notable Qualifications and Exceptions

Title VII governs employers with 15 or more employees, a statutory threshold designed to evoke the Commerce Clause power. Another limiting provision is an exemption for a ”religious corporation, association, educational institution, or society.”  The majority hat tips this carveout and gives juridical shout-outs to the First Amendment and Religious Freedom Restoration Act (“a kind of super statute”).

This opinion does not involve constitutional rights. The protections in the Civil Rights Act are statutory – and what the Supreme Court judicially giveth, Congress can taketh away – or limit or expand.  Don’t forget to vote.

My Take

Although I support a legislative expansion of Title VII to prohibit sexual orientation discrimination, I find the minority opinions persuasive.  Under our Constitution, this decision belongs to Congress and not to the smallest, unelected branch of the federal government.  Congress did not intend, in 1964, to provide such protection.  Even Justice Ginsburg recognized during oral arguments that “back in 1964, … in many states male same-sex relations was a criminal offense; the American Psychiatric Association labeled homosexuality a … mental illness.”

To its discredit, Congress attempted but failed to amend the law.  But its failure doesn’t trigger some recondite constitutional provision authorizing the Court to add a codicil. Instead, when Congress fails to carry out the will of the people, the concerned citizenry should assemble, speak freely, protest, petition, donate and vote.

The consequences of Gorsuch’s opinion will be understandably embraced by a majority of our electorate. But the opinion itself, and the means to get there – usurpation of another branch’s power – isn’t cause for celebration.

Anyway, more than five decades after passage, in another century, without any public debate as to amendment or official action by the House, Senate or President, and then without advance notice of effectiveness giving employers an opportunity to plan, we now have a significantly expanded federal law.

I resort, once again, to a sagacious adage from Justice Scalia: “[A] system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

» BEN WILLIAMS, the author, is a Mississippi attorney.  Email Ben at Ben2020MS@gmail.com.  FORD WILLIAMS, the artist, is a 2020 graduate of Savannah College of Art & Design (SCAD) in Georgia.

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About Ross Reily

Ross Reily is editor of the Mississippi Business Journal. He is a husband to an amazing wife, dad to 3 crazy kids and 2 dogs. He is also a fan of the Delta State Fighting Okra and the Boston Red Sox.