Clashes over sex ori­en­ta­tion push to­ward Supreme Court

The Washington Times Daily - - FRONT PAGE - BY ALEX SWOYER

When the Trump Jus­tice Depart­ment last month as­serted that civil rights laws don’t pro­tect against dis­crim­i­na­tion based on sex­ual ori­en­ta­tion, it clashed with an­other part of the ad­min­is­tra­tion — the Equal Em­ploy­ment Opportunity Com­mis­sion — which pre­vi­ously claimed that the laws did ap­ply.

Fed­eral ap­peals judges are also at odds. A Chicago-based court ruled that Ti­tle VII of the Civil Rights Act of 1964 does cover sex­ual ori­en­ta­tion, while an At­lanta-based court ruled that it was never en­vi­sioned as a pro­tected class un­der the law.

The dis­agree­ments make it much more likely that the case will end up at the highest lev­els.

“I would think it’s a dead cer­tainty to make it to the Supreme Court,” said Richard Ep­stein, a law pro­fes­sor at New York Uni­ver­sity. “Con­flicts of in­ter­est gen­er­ally get to the Supreme Court if they’re big.”

If so, it would mark the lat­est in a series of gay rights is­sues to reach a high court that has been in­creas­ingly friendly to the con­cerns. Jus­tices have es­tab­lished a na­tion­wide right to marry

a per­son of one’s own sex and or­dered states to change ev­ery­thing down to birth cer­tifi­cates to con­form with that rul­ing.

They also have agreed to hear a case next term about whether Chris­tian trades­men re­fus­ing to par­tic­i­pate in same-sex mar­riage cer­e­monies are vi­o­lat­ing anti-dis­crim­i­na­tion laws.

But the job dis­crim­i­na­tion cases could push into still new ar­eas.

Ti­tle VII, which out­laws dis­crim­i­na­tion against an em­ployee based on race, sex, re­li­gion or na­tional ori­gin, does not men­tion sex­ual ori­en­ta­tion or prac­tice.

In April, the 7th U.S. Cir­cuit Court of Ap­peals ruled that even with­out ex­plicit lan­guage in the law, it must be read to in­clude sex­ual ori­en­ta­tion, say­ing it is es­sen­tially the same as sex dis­crim­i­na­tion.

“It is ac­tu­ally im­pos­si­ble to dis­crim­i­nate on the ba­sis of sex­ual ori­en­ta­tion with­out dis­crim­i­nat­ing on the ba­sis of sex,” Chief Judge Diane Wood wrote.

Judge Richard Pos­ner, in a con­cur­ring opin­ion, ac­knowl­edged that the court was in ef­fect rewrit­ing the law — and should be proud of that, since it was done in ser­vice of de­fend­ing a sex­ual mi­nor­ity.

“We should not leave the im­pres­sion that we are merely the obe­di­ent ser­vants of the 88th Congress (1963-1965), car­ry­ing out their wishes. We are not. We are tak­ing ad­van­tage of what the last half-cen­tury has taught,” he wrote.

A three-judge panel of the At­lanta-based 11th Cir­cuit, though, ruled in March that its own long­stand­ing prece­dents pre­clude sex­ual ori­en­ta­tion as a ba­sis for Ti­tle VII claims and said un­til the Supreme Court de­cides oth­er­wise, they are bound.

Kather­ine Franke, a law pro­fes­sor at Columbia Uni­ver­sity, said there is lit­tle leg­isla­tive his­tory or guid­ance from Congress on how to in­ter­pret the word “sex” in the Civil Rights Act of 1964, so the law has been evolv­ing.

“What we are do­ing now is ask­ing these hard ques­tions once again about what ‘sex’ means and ‘sex dis­crim­i­na­tion’ means,” said Ms. Franke. “The statute has al­ways been kind of a liv­ing doc­u­ment.”

Mr. Ep­stein said that if the mat­ter reaches the Supreme Court, Jus­tice An­thony M. Kennedy will likely be the tie breaking vote, set­ting the law for the fore­see­able fu­ture.

“Where you end up in court is where you end up in life for the next gen­er­a­tion,” he said.

Adding to the drama is a split within the ex­ec­u­tive branch.

The Equal Em­ploy­ment Opportunity Com­mis­sion filed briefs in a case be­fore the 2nd U.S. Cir­cuit sup­port­ing a gay man who was claim­ing sex­ual ori­en­ta­tion dis­crim­i­na­tion. It filed am­i­cus briefs in both the 7th and 11th Cir­cuit cases but was suc­cess­ful in only one of them.

The Trump ad­min­is­tra­tion’s Jus­tice Depart­ment, though, dis­agrees with the EEOC’s po­si­tion.

Devin O’Mal­ley, a spokesman for the Jus­tice Depart­ment, said the depart­ment’s po­si­tion, con­trary to the EEOC, is in line with 10 cir­cuit courts and “reaf­firms the depart­ment’s fun­da­men­tal be­lief that the courts can­not ex­pand the law be­yond what Congress has pro­vided,” said Mr. O’Mal­ley. The EEOC de­clined to com­ment.

Josh Black­man, a pro­fes­sor at South Texas College of Law, said it’s rare but not un­prece­dented for the Jus­tice Depart­ment and the EEOC to take op­po­site po­si­tions.

Even more note­wor­thy, though, is the depart­ment’s re­ver­sal. It sup­ported the sex­ual ori­en­ta­tion read­ing of Ti­tle VII un­der the Obama ad­min­is­tra­tion, but un­der Mr. Trump has come to a dif­fer­ent con­clu­sion.

“The Supreme Court has been some­what crit­i­cal when the gov­ern­ment switches sides fol­low­ing an elec­tion. There is noth­ing wrong with it, but it is sig­nif­i­cant when it hap­pens,” Mr. Black­man said.

Be­cause the EEOC is an in­de­pen­dent agency with lit­i­ga­tion author­ity, its po­si­tion doesn’t have to con­form with the Jus­tice Depart­ment.

“Ex­ec­u­tive branch agen­cies with dif­fer­ent po­si­tions of­ten work them out in­for­mally so that the ex­ec­u­tive branch can take a con­sis­tent po­si­tion,” said Nina Men­del­son, a law pro­fes­sor at the Uni­ver­sity of Michi­gan. “But Congress cre­ated the EEOC as an in­de­pen­dent agency and sup­plied it with in­de­pen­dent lit­i­gat­ing author­ity, so the Depart­ment of Jus­tice likely would have a dif­fi­cult time get­ting the EEOC to change its po­si­tion in the cir­cuit court.”

She said it’s dif­fi­cult to pre­dict which brief the cir­cuit court would give greater weight.

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