Rally ahead of SCOTUS cases
Gorsuch’s queries may signal that his vote is in play
Activists rally in support of LGBTQ rights at New York City Hall on Tuesday in New York City. The U.S. Supreme Court will hear three cases on whether it is legal to fire workers because of their sexual orientation or gender identity. The cases on Tuesday are the court ’s first LGBTrelated cases since Justice Brett Kavanaugh replaced retired Justice Anthony Kennedy.
In a pair of exceptionally hard-fought arguments on Tuesday, the Supreme Court struggled to decide whether a landmark 1964 civil rights law bars employment discrimination based on sexual orientation and transgender status.
Job discrimination against gay and transgender workers is legal in much of the nation, and the wide-ranging arguments underscored the significance of what could be a momentous ruling. If the court decides that the law, Title VII of the Civil Rights Act, applies to many millions of LGBT employees across the nation, they would gain basic protections that other groups have long taken for granted.
The cases were the court ’s first ones on LGBT rights since the retirement last year of Justice Anthony M. Kennedy, who wrote the majority opinions in all four of the court ’s major gay rights decisions. And without Kennedy, who joined four liberals in the 5-4 ruling in the marriage case, the workers who sued their employers in the three cases before the court may face an uphill fight.
For the most part, the justices seemed divided along predictable ideological lines on Tuesday. But there was one possible exception: Justice Neil M. Gorsuch, a member of the court ’s conser vative majority, who asked questions suggesting that his vote might be in play.
Gorsuch is an avowed believer in textualism, meaning that he considers the words Congress enacted rather than evidence drawn from other sources. And he repeatedly suggested that the words of Title VII may well bar employment discrimination based on sexual orientation and transgender status.
The question was, he said, “really close, really close.”
But he added that such a significant change might be more appropriate coming from Congress rather than the courts.
Title VII outlawed discrimination based on race, religion, national origin and, notably, sex. The question for the justices was how broadly to read that last term.
The court considered the question in two hourlong arguments. The first concerned a pair of lawsuits from gay men who say they were fired because of their sexual orientation. The second was about a suit from a transgender woman, Aimee Stephens, who said her employer fired her when she announced that she would embrace her gender identity at work.
In both, the justices considered a host of f lash points in the culture wars involving the LGBT community — including sports, dress codes, religious objections to same-sex couples and, especially, bathrooms.
The cases concerning gay rights are Bostock v. Clayton County, Ga., No. 17-1618, and Altitude Express Inc. v. Zarda, No. 17-1623. The case on transgender rights is R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, No. 18-107.