On LGBT Rights, a Roll of the Dice at Court

      For several decades now, liberal advocacy groups have been wary of bringing test cases up to the Supreme Court for fear that the built-in conservative majorities would dash their hopes by turning an unsettled legal issue into a nationwide rule on the other side. That concern surfaced quickly after the justices agreed this week [April 22] to hear test cases later this year to determine whether the federal civil rights law enacted in 1964 prohibits employers from discriminating against LGBT employees or job applicants.
      "Supreme Court Will Smash Gay Rights Next Term" was the banner headline on the downbeat column that Elie Mystal, executive editor of the legal affairs blog Above the Law posted from his New York City watching post three hours after the Court's orders were issued in Washington. Mystal acknowledged that the Court had to take the cases, given a circuit split on the issue, but he warned that worse than a circuit split was "the Supreme Court deciding the issue poorly."
      Two other liberal Supreme Court commentators followed within a couple of days to warn more ominously that the Roberts Court conservatives might use the cases to scrap precedents that have extended the Civil Rights Act's prohibition against sex discrimination to cover sexual harassment — whether opposite- or same-sex harassment — and hostile work environments. In his column for the online magazine Slate, Mark Joseph Stern warned that the rulings in the three cases accepted for review "could demolish sex discrimination law as we know it." Ian Milhiser, legal affairs columnist for the progressive news site ThinkProgressMemo, similarly warned that the Court might be "on the cusp of rewriting decades of sex discrimination law" that interpreted the 1964 law to prohibit sexual harassment and gender stereotyping in the workplace.
      All three commentators, friends and colleagues of mine, argue that the provision in the 1964 law's Title VII that prohibits discrimination "on the basis of sex" naturally and inevitably prohibits discrimination on the basis of sexual orientation or gender identity. But they all fear that the five Roberts Court conservatives, including the chief justice himself, will reject what has become a jurisprudential consensus on a broader understanding of the law.
      With all that doom and gloom, the New York Times' former Supreme Court correspondent, Linda Greenhouse, stepped in to argue against making "a snap judgment" about the outcome of the cases before merits briefing even begins. Greenhouse analyzed the justices' protracted consideration of the cases before granting certiorari as a sign that, in fact, the conservative bloc's minds may not be fixed on ruling against LGBT rights.
      As a reminder, Title VII law broadly prohibits any job-related discriminatory treatment "on the basis of [an] individual's race, color, religion, sex, or national origin" (emphasis added.). The late-added prohibition against sex discrimination, intended by opponents as an impossible-to-swallow poison pill, was debated in Congress only cursorily before being signed into law as the first of the three major civil rights laws enacted in the mid-1960s.
      No one can seriously argue that Congress intended the law to protect gay men, lesbians, or transgender individuals against discrimination in the workplace. Gay rights advocates lobbied for years in Congress and in state capitals to add sexual orientation and gender identity to anti-discrimination laws with mixed results before concentrating their efforts on achieving their goal through the courts.
      By now, however, dozens of state and federal courts, including two of the federal circuit courts of appeals, have ruled that way, according to a compilation by the federal Equal Employment Opportunity Commission (EEOC). The judges who have adopted that position include a number of well-known conservatives, as Stern and Greenhouse both note. Greenhouse notes as one example that Judge José Cabranes concurred in the Second Circuit decision now under review by stating matter-of-factly that sexual orientation "is a function of [an individual's] sex."
      The plaintiffs in the three cases represent two of the initials in the LGBT alphabet. The former New York City skydiving company Altitude Express fired instructor Donald Zarda in 2010 after he sought to reassure a female customer by telling her that he was gay; he died four years later in an accident and the case, Altitude Express Inc. v. Zarda, is now litigated by his sister and his former partner. Gerald Lynn Bostock, petitioner in Bostock v. Clayton County, Georgia, says the county's juvenile court system fired him in 2013 on a pretext after supervisors learned of his participation in gay community activities.
      The EEOC is representing the interests of the plaintiff in the third case, R.G. and G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission: Amiee Stephens, a transgender woman, who was fired by a Detroit-area funeral home after reporting for work post-transition dressed in women's clothes.  Greenhouse spotted an encouraging sign in the Court's rephrasing of the question presented in the case to include whether Title VII "prohibits sex stereotyping . . . "
      With no inside information on the justices' months-long deliberation before teeing up the cases, the best that can be said now is that LGBT advocates are hoping for a favorable roll of the dice. They have been in this situation before. In 1986, a test case on anti-sodomy laws turned into the unfavorable, later-overruled decision in Bowers v. Hardwick upholding those laws. Four years ago, however, they marked their greatest legal victory to date with the Court's 5-4 decision in Obergefell v. Hodges (2015) guaranteeing marriage rights to same-sex couples nationwide.
      Justice Anthony Kennedy's retirement from the Court leaves LGBT rights advocate without their most effective ally among the nine. The four liberal justices can be counted on to support LGBT rights in the new cases, but the five conservatives — including Kennedy's successor, Brett Kavanaugh — have no record of supporting LGBT protections in any of their prior cases.
      Roberts' impassioned dissent in the marriage equality cases casts a dark cloud over hopes that he might help form a five-vote majority for LGBT rights in the new cases. But the doomsaying from liberal commentators makes clear this much: a ruling to limit Title VII protections for LGBT employees will come, if it does, at the expense of the conservatives' professed commitment to "plain text" statutory interpretation and respect for precedent.