SCOTUS and Discrimination “Based on Sex”

From Fr. De Celles’ column in parish bulletin June 20 – 21, 2020

Supreme Court and Discrimination “Based on Sex.”

The Civil Rights Act of 1964 outlaws workplace discrimination based on “race, color, religion, sex, or national origin.” Last week the U.S. Supreme Court ruled that the ban on discrimination based on “sex” included discrimination based on homosexuality and transgender identification (see Bostock v. Clayton County). Of course this is terrible news for our country.

First of all, while there are religious exemptions from this ruling (under various laws including the 1st Amendment) as the opinion says, “how these doctrines protecting religious liberty interact with Title VII are questions for future cases too.” In particular, how will these safeguards protect regular businesses (versus churches) owned by Christians who, based on their religious conviction, may not want to employ a “LGBTQ” person?

But also of concern is the employer who simply objects to dealing with all the extra workplace complications of employing a man who dresses and acts like a woman,? That employer will apparently not be exempt, and will commit a crime if he acts in a way that most people 5 years ago would have called commonsensical.

But another great concern many take away from this case is that the vote was 6 to 3, including “conservative” justices (Chief) Roberts and Gorsuch. Many wonder what this “liberal” decision indicates about their potential future votes not only on “LGBTQ” rights, but also, for example, on religious liberty and abortion?

I am not here to be an apologist for these two men, and their votes did unnerve me, and very much concern me. And I’m not a lawyer. But after reading the rulings, and talking to some lawyers “close to the Court,” I think maybe it’s yet not time to give up on Roberts and Gorsuch.

In particular, Roberts dissented vehemently in the SCOTUS ruling in 2015 (Obergefell) allowing “gay marriage.” And in this case (Bostock) he did not right an opinion. So why did he join the liberal judges in this vote? To make a long argument short, when the Chief Justice votes with majority (winning side) in a case, he gets to pick the Justice who will write the opinion, but if he votes with the minority (losing side) he has no say. And remember, it’s not just the vote that counts—the language of the opinion affects how that case will be applied in the future. So, in some cases, I’m told, when Roberts is inclined to vote with the minority, he switches to vote with the majority (which he disagrees with) so that he can pick the majority justice who will write the least harmful opinion. In this case, knowing Gorsuch would create majority with the 4 “liberal” Justices, Roberts might have disagreed with the majority but voted with them so he could appoint Gorsuch to write a much less harmful opinion than what one of the “liberal” justices would write.

As far Gorsuch goes, he came to the Court with a reputation for being not simply “conservative” but also a “textualist”— following the text of the law, and not try to read anything else into it. For example, the text of the Constitution does not include anything about a right to “gay marriage” or abortion, so a textualist would tend say “no” to those supposed rights. But a textualist like Gorsuch might also look at the text of the Civil Rights Act that outlaws discrimination “based on… sex” and say, if an employer fires a male for being sexually active with males, but would not fire a female for that very same activity (being sexually active with males), the employer is discriminating based on the sex of the employee.

Now, along with Justices Alito, Cavanaugh and Thomas, I do not agree with this reading of the text. Alito’s dissent focused on the ordinary meaning of the statute’s words in 1964. “Discrimination “because of sex” was not understood as having anything to do with discrimination because of sexual orientation or transgender status. Any such notion would have clashed in spectacular fashion with the societal norms of the day. And the plain truth is that in 1964 homosexuality was thought to be a mental disorder…” In his separate written dissent Justice Kavanaugh calls Gorsuch’s approach not “textualist” but “literalist.”

So I’m very upset, but not ready to give up on the Court. Yet. And maybe some of you can come down from that ledge now, so to speak.