Supreme Court divided in LGBT discrimination cases; Gorsuch weighs both sides

Trump appointee concerned about 'social upheaval,' says it's a 'question of judicial modesty'

By Samuel Smith, Deputy Managing Editor Thursday, October 10, 2019

The U.S. Supreme Court heard arguments Tuesday in three cases that could set important precedents about whether federal civil rights protections on the basis of sex also guarantee legal protections on the basis of gender identity and sexual orientation. 

The three cases involve people who claim to have been fired because they are gay or identify as transgender. Two are gay men and the other is a man who identifies as a woman. 

The two gay men argue that they were fired due to their sexual orientation. However, decisions were split at the U.S. Court of Appeals as to whether firing on the basis of sexual orientation violated the Civil Rights Act of 1964. 

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The other case, Harris Funeral Homes v. Equal Employment Opportunity Commission, involves a Christian funeral home operator in Michigan that terminated an employee who refused to wear clothing that corresponded with the employee’s biological sex.

Harris Funeral Homes was later sued by the EEOC based on the claim that the company engaged in sex discrimination under Title VII of the federal Civil Rights Act of 1964. 

The Sixth Circuit Court of Appeals sided with Stephens, who is represented at the Supreme Court by the American Civil Liberties Union. Meanwhile, R.G. & G.R. Funeral Homes is represented by the Alliance Defending Freedom. 

The funeral home case represents the first high court case on transgender rights. 

The nine justices heard hours of arguments Tuesday and debated along political lines. Supporters of both sides rallied outside the Supreme Court building on First Street. 

According to Reuters, the court’s four liberal justices seemed to agree with arguments presented by the plaintiffs that sex discrimination protections should be extended on the basis of sexual orientation and gender identity. 

Meanwhile, the court’s five conservative justices seemed to be more skeptical. 

Justice Neil Gorsuch, President Donald Trump’s first Supreme Court appointee, appeared to play both sides of the issues throughout the day. He was seemingly more open to the plaintiffs’ arguments than other conservative justices. 

Gorsuch did, however, question the “judicial role and modesty in interpreting statutes that are old.”

“The question is about judicial interpretation,” Gorsuch said. 

But Gorsuch suggested that the “textual evidence” for extending discrimination protection to Stephens is “really close.”

“We're not talking about extra-textual stuff,” Gorsuch said, according to the court transcript. “We're talking about the text. It's close. The judge finds it very close.” 

ACLU lawyer David Cole responded by saying that his side is not asking the court to “apply any meaning of sex other than the one that everybody agrees on as of 1964, which is sex assigned at birth.”

“We're not asking you to rewrite it,” Cole explained. 

Gorsuch also suggested that sex, as defined in the law, can be a contributing factor to someone being fired on the basis of sexual orientation, Reuters notes. 

“Sexual orientation is surely in play here,” Gorsuch said. “But isn’t sex also in play here? And isn’t that enough?”

“In what linguistic formulation would one say that sex — biological gender — has nothing to do with what happened in this case?” Gorsuch added.

Gorsuch did wonder if there would be “massive social upheaval” if the court usurps judicial authority.

“It's a question of judicial modesty," Gorsuch contended, asking if such a policy was "more appropriate a legislative rather than a judicial function?"

Cole responded by saying that courts have ruled for 20 years that that discrimination against transgender people is sex discrimination and there has been no social upheaval. 

Justice Samuel Alito, appointed by President George W. Bush, argued that ruling that Title VII prohibits discrimination on the basis of sexual orientation is “a different policy issue from the one that Congress thought it was addressing in 1964.”

“And Congress has been asked repeatedly in the years since 1964 to address this question,” Alito said. “Congress has declined or failed to act on these requests. And if the Court takes this up and interprets this 1964 statute to prohibit discrimination based on sexual orientation, we will be acting exactly like a legislature.”

Liberal Justice Ruth Bader Ginsburg, appointed by President Bill Clinton, pointed out that there were many in 1964 when the law was enacted who would not have thought that sexual harassment was covered under sex discrimination protections.

“It wasn't until a book was written in the middle '70s bringing that out,” she argued. “And now we say, of course, harassing someone, subjecting her to terms and conditions of employment she would not encounter if she were a male, that is sex discrimination but it wasn't recognized." 

U.S. Solicitor General Noel Francisco, who is responsible for representing the federal government at the Supreme Court, argued that it is “important to allow the democratic processes to resolve these issues so we have a stable resolution of the issue and one that takes into account what everybody would agree are legitimate interests on all sides.”

“And in Obergefell, this court made very clear that there were good and decent people who had different views with respect to gay marriage and they should be respected,” Francisco said. “The legislative process is the process that allows those views to respect — be respected as well as the very powerful views of my friends on the other side.”

Justice Sonia Sotomayor, appointed by President Barack Obama, followed up by asking “at what point does a court continue to permit invidious discrimination against groups that, where we have a difference of opinion, we believe the language of the statute is clear.”

“I think Justice [Stephen] Breyer was right that Title VII, the Civil Rights Act, all of our acts were born from the desire to ensure that we treated people equally and not on the basis of invidious reasons,” Sotomayor stressed. 

“At what point does a court say, Congress spoke about this, the original Congress who wrote this statute told us what they meant. They used clear words. And regardless of what others may have thought over time, it's very clear that what's happening fits those words. At what point do we say we have to step in?”

The justices have until June 2020 to issue a ruling. 

ADF attorney John Bursch told media after the hearing that justices “across the bench” were “troubled” by how the ACLU’s argument would eliminate sex-specific policies in the workplace pertaining to dress codes, restrooms and even sports teams. 

“Justice Ginsburg observed that, unlike other classifications, certain distinctions require treating men and women differently,” Bursch said, according to Detroit News. “That should be patently obvious to all of us.”