Fired for being gay? LGBTQ rights return to Supreme Court.

Sometimes, to make female clients feel more comfortable while they were strapped together on a tandem jump, skydiving instructor Donald Zarda would tell them he is gay. After his employer, Altitude Express, learned of this, he was fired.

Gerald Bostock, a former child welfare services coordinator for Georgia’s Clayton County, says he was fired for a similar reason. Aimee Stephens, meanwhile, says she was fired from her job at a Detroit funeral home because she had just come out as transgender.

The U.S. Supreme Court heard oral arguments Tuesday on whether federal law prohibits employment discrimination against LGBTQ people. The law, Title VII of the Civil Rights Act of 1964, prohibits employers from discharging individuals “because of such individual’s ... sex.” Whether Title VII’s protections include sexual orientation or gender identity has divided appeals courts, and so the high court is stepping in.

The trio of cases could have significant consequences not only for the civil rights of LGBTQ Americans, but also the Supreme Court’s institutional legitimacy, some argue. All eyes will be on the court’s five conservative justices in their first full term together. Today’s questions in particular represent not just an interesting test of the textualist and originalist judicial philosophies many say they adhere to, but a signal of how the court will depart from the relatively liberal gay rights jurisprudence crafted by the recently retired Justice Anthony Kennedy.

“The real-world impacts of the case are hugely important,” says Steven Schwinn, a professor at the University of Illinois, Chicago, John Marshall Law School. “Stepping back from the real world impacts, it’s a case that potentially signals the direction the court may go with regard to [LGBTQ] rights in the future.”

Philosophy test

Textualism and originalism, broadly speaking, call for statutes to be interpreted as written and for the Constitution to be interpreted as the Framers originally intended. When Justice Antonin Scalia joined the court in 1986, originalism was a relatively fringe philosophy only he and a few other judges adhered to, but it has since become one of the dominant methods of judicial interpretation.

Three committed textualists now sit on the high court: Justices Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas. The Title VII cases offer a unique test of that philosophy, experts say.

A focus on the plain text of the statute – the core of textualism as a method of judicial interpretation – makes it hard to conclude that gay and transgender employees aren’t protected by Title VII, some argue. If a woman is fired because she is sexually attracted to other women, for example, then she is being treated differently from a woman who is sexually attracted to men, in violation of the law.

Opponents counter that when Congress passed the Civil Rights Act, its original intent was to prohibit employers from treating members of one sex worse than similarly situated members of the other sex. Congress has also never updated the law to explicitly protect employees fired due to their sexual orientation, they point out.

“The ordinary meaning of ‘sex’ is biologically male or female; it does not include sexual orientation,” wrote the U.S. Department of Justice (DOJ) in a brief supporting the employers. And “for more than 40 years, Congress has repeatedly declined to pass bills adding sexual orientation to the list of protected traits in Title VII.”

The employees counter that this argument ignores some of the Supreme Court’s own past rulings – in particular its rulings on racial discrimination. The court struck down laws banning interracial cohabitation and interracial marriage on the grounds that discrimination on the basis of a person’s association with another person of a different race is unconstitutional.

Since then, the court has also ruled that sex-based stereotypes (in some cases) and same-sex sexual harassment are both actionable under Title VII. In the latter ruling, Justice Scalia wrote that while Congress may not have intended as much in 1964, the law should be interpreted to cover “reasonably comparable evils.”

“That’s the bind I see these textualists in,” says Kimberly West-Faulcon, a professor at Loyola Law School in Los Angeles. “Will they stick to the rules of textualism as previously articulated to them? Or will they deviate?”

During oral arguments, Justice Ruth Bader Ginsburg asked Pamela Karlan, representing Mr. Bostock, how she would respond to the argument that sexual orientation discrimination could not have been in Congress’s mind when it originally passed Title VII. “I think you read the words of the statute. And this court has recognized again and again forms of sex discrimination that were not in Congress’s contemplation in 1964,” Ms. Karlan replied.

“Most courts didn’t find sexual harassment to be actionable until this court did,” she added. In another case “this court recognized that discrimination against a woman who cursed like a sailor, walked like a man, and didn’t wear makeup was reachable under Title VII.’”

This could be where the significance of the decision extends beyond the interests of LGBTQ employees across the country, some experts say.

“The Supreme Court’s legitimacy rests upon a perception that its members are applying existing law in a neutral manner,” wrote William Eskridge, a professor at Yale Law School in a blog post. “The credibility of textualism as a neutral methodology depends on the court’s deciding cases like Bostock’s without regard to partisan biases.”

But more than one justice argued that to apply the law in the manner the plaintiffs’ are arguing would be to usurp Congress’ role.

Justice Samuel Alito said that if Title VII is broadened to prohibit discrimination on the basis of sexual orientation, people will say it’s “a big policy issue” and “a different policy issue from the one that Congress thought it was addressing in 1964.”

“Congress has been asked repeatedly in the years since 1964 to address this question,” he added. “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.”

During arguments in Ms. Stephens’ case, Justice Neil Gorsuch seemed the most ambivalent of his conservative colleagues. “I’m with you on the textual evidence. It’s close, OK?’ he told David Cole, legal director for the American Civil Liberties Union, who represented Ms. Stephens. But “at the end of the day, should [a justice] take into consideration the massive social upheaval that would be entailed in such a decision?”

Lawrence Hurley/Reuters

Gerald Bostock, who says he lost his job because he is gay, stands outside his home in Atlanta on Sept. 9, 2019.

“Equal dignity for individuals”

Arguments against interpreting Title VII so that it protects LGBTQ employees are not limited to textualism and originalism. A number of faith-based organizations have filed briefs warning that interpreting Title VII to protect LGBTQ employees would jeopardize employers who may only want to hire people whose beliefs and conduct are consistent with their faith.

“I think both sides have a pretty good case,” says Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School. “It wouldn’t be outrageous if the court ruled against the [employees] here, because there are plausible arguments for it, but I agree that it’s not very obvious that [sexual orientation] wouldn’t be covered.”

For this reason, the absence of Justice Kennedy may not be felt too keenly. But if the current court does decide that LGBTQ employees are protected by Title VII, Professor Somin says, it would likely focus on textualism grounds.

However the cases are decided, the approach Justice Kennedy took with gay rights cases – a focus on the right to individual dignity for every American – is unlikely to be seen, in a majority opinion at least, for some time.

“Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations,” wrote Justice Kennedy in the landmark 2015 opinion legalizing same-sex marriage. “Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.”

It is that view of gay rights by the Supreme Court that could now be lost, at least among the conservative justices.

Justice Kennedy “encompassed both equal protection principles and due process principles, but I also think he was speaking at a higher level ... talking about equal dignity for individuals,” says Professor Schwinn.

“I don’t think Justice Kavanaugh is going to share that view, and I don’t think other conservatives share that view,” he adds. “I don’t think that kind of analysis, that kind of language, is going to be in the court’s jurisprudence on this.”

Indeed, while Justice Kennedy often supported protecting and expanding gay rights, he did so in a narrow fashion – often permitting exceptions and carve-outs on religious grounds, for example. As such, “it would be easy for those who are now on the court to distinguish [his] cases without really having to overturn them,” says Professor West-Faulcon.

In other words, the rights Justice Kennedy helped secure for LGBTQ Americans are unlikely to disappear, she adds, but they “could be in danger of becoming idiosyncratic opinions that only apply in one particular context at one particular time.”

Editor’s note: This story was updated at 3 p.m. to include reporting from Tuesday’s oral arguments at the Supreme Court.