A Year Before The Election Season, Supreme Court’s Foray Into LGBT Rights Could Further Cement The Judicial Body As A Major Campaign Issue

Forbes Finance 2 months ago

On the second day of its new term, the Supreme Court heard three cases that might turn into a major campaign issue in the coming presidential race, once again injecting the judicial body into the national spotlight during an election.

The issue before the Court was whether the 1964 Civil Rights act prohibited employers from discriminating against gay, lesbian, and transgender employees. Promulgated to shield African-Americans at the height of the civil rights movement, Title VII of the landmark legislation prohibited discrimination in the workplace based on a person’s “race, color, religion, sex, or national origin.” 

Based on a complex mix of conflicting methods of statutory interpretation, the application of principles from a law enacted in a bygone age to new social norms, and the justices’ ideologies, the cases pose an unusual cocktail of opportunities and pitfalls for the justices. They might break out of their customary ideological camps or feed into the growing sentiment that they are increasingly behaving as partisan stalwarts doing the bidding of their respective political parties.

Minutes into the oral arguments, Justice Ruth Bader Ginsburg got to the heart of the legal quandary facing the Court. “Ms. Karlan, how do you answer the argument that back in 1964, this could not have been in Congress’s mind” she asked Pamela Karlan, the attorney representing two gay plaintiffs who were fired by their employers because of their sexual orientation. (Following these cases—Bostock v. Clayton County, Georgia and Altitude Express v. Zarda—the justices heard a third case—R.G. & G.R. Harris Funeral Homes v. EEOC—involving a transgender employee.)

Supreme Court LGBT Rights
U.S. Capitol Police officers move people to the sidewalk as supporters of LGBT rights take the street in front of the U.S. Supreme Court, Tuesday, Oct. 8, 2019. (AP Photo/Manuel Balce Ceneta)

Reflecting the mindset of the era, the inclusion of “sex” in the civil rights statute excluded LGBT persons from Title VII’s protections. In fact, many states at the time categorized homosexuals as mentally ill and criminalized homosexual behavior.

“In 1964, those were the day of Mad Men,” Karlan answered back, referring to the critically-acclaimed show depicting an advertising agency in the 1960s. “When a[n] employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII,” Karlan explained. If a man “is discriminated against for being gay, he is discriminated against for not conforming to an expectation about how men should behave,” Karlan added, reiterating an argument that discrimination based on a person’s sexual orientation or gender identification is an obvious form of sexual discrimination that is consistent with the plain reading of the statute’s text.

Justice Samuel Alito disagreed. “You’re trying to change the meaning of what Congress understood sex to mean,” he told Karlan. If the Court expands the law’s scope, Alito countered, then it might be accused of acting as a legislative body. 

The plaintiffs in these three cases have relied on a ruling with an unlikely author—the late Justice Antonin Scalia. In a case expanding the scope of Title VII beyond its origins, Scalia wrote: “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII.  But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

His broad application of Title VII in the 1998 case has reflected the growing consensus over the years. Even with Congress unwilling or unable to amend the 1964 Civil Rights Act (the House did recently pass an amendment to Title VII to explicitly include sexual orientation and gender identity but the Senate hasn’t acted on the matter), the scope of the law’s applicability has expanded over time. Discriminating against a person because he or she is married to a someone of the same sex has been construed as a form of sex discrimination covered by the statute in growing academic and legal circles, including a federal appellate court in 2017. In another landmark ruling from the 1980s, the Court prohibited gender stereotyping under Title VII’s purview—yet another example of the law’s application beyond its original contours.

Consistent with this expansive approach, more than thirty amicus briefs have been submitted on behalf of Bostock and Zarda—perhaps most notably by a group of 206 corporations including household brands such as Apple, Walt Disney, and Citigroup. These corporate titans, which employ more than seven million employees, argued that banning discrimination based on sexual orientation or gender identity would not be “unreasonably costly or burdensome” to the business community and that protecting these people “would strengthen and expand benefits to businesses.” 

Though the legal issue in this case centers on a strict application of statutory language, the Court’s legalization of same-sex marriage and other historic rulings impacting the rights of the LGBT community in recent years “have to be lurking in the background,” explained Laura Maechtlen, a partner at Seyfarth Shaw. 

The other issue hanging over the justices is the potential electoral impact of these cases. Former justice Anthony Kennedy, who authored the 5-4 ruling legalizing same-sex marriage in 2015 as well as Lawrence v. Texas, a seminal case for gay and lesbian rights in issued in 2003, is no longer on the Court. 

His absence could alter the political fallout from these rulings. If the Court’s four liberals rule to expand the rights of the LBGT community—in line with their past holdings—and justices Alito, Clarence Thomas, and John Roberts cast their votes on the other side, as they generally have in the past, then the case will hinge on Donald Trump’s two appointments—justices Neil Gorsuch and Brett Kavanaugh. Such an outcome is likely to reawaken the acrimony surrounding their controversial confirmations and inject the Court into the presidential debate just as the election goes into full gear next summer. When combined with the potential retirements of justices Ginsburg and Stephen Breyer, both of whom are in their eighties, the Court will once again find itself at the storm center of a presidential election—a position it has long sought to avoid.


Source link
Read also:
USA Today › 2 months ago
A seemingly divided Supreme Court struggled Tuesday over whether a landmark civil rights law protects LGBT people from discrimination in employment. AP'S Supreme Court Reporter Mark Sherman explains. (Oct. 8)
Chicago Tribune › 2 months ago
A divided Supreme Court struggled Tuesday over whether a landmark civil rights law protects LGBT people.
Washington Times › 2 months ago
The Supreme Court is set to hear arguments in two of the term's most closely watched cases over whether federal civil rights law protects LGBT people from job discrimination.
The Boston Globe › Politics › 2 months ago
The Supreme Court is set to hear arguments in two of the term’s most closely watched cases over whether federal civil rights law protects LGBT people from job discrimination.
New York Post › 2 months ago
The Supreme Court is set to hear arguments in two of the term’s most closely watched cases over whether federal civil rights law protects LGBT people from job discrimination.
Chicago Tribune › 2 months ago
The Supreme Court is set to hear arguments in two of the term's most closely watched cases over whether federal civil rights law protects LGBT people from job
ABC News › Finance › 2 months ago
Supreme Court set to hear arguments in two of the term's most closely watched cases over whether federal civil rights law protects LGBT people from job discrimination
The New York Times › 2 months ago
For many of the hundreds of LGBT activists demonstrating outside the U.S. Supreme Court during arguments in major cases on gay and transgender rights, the story being told inside about plaintiffs Gerald Bostock and Aimee Stephens sounded all too...
ABC News › 2 months ago
Abortion rights, and protections for young immigrants and LGBT people are at the top of the Supreme Court agenda in an election-year term that offers its more conservative majority ample opportunity to flex its muscle
The New York Times › Politics › 2 months ago
Abortion rights as well as protections for young immigrants and LGBT people top an election-year agenda for the Supreme Court.
Sign In

Sign in to follow sources and tags you love, and get personalized stories.

Continue with Google
OR