Albany Times Union

Rally ahead of SCOTUS cases

Gorsuch’s queries may signal that his vote is in play

- By Adam Liptak and Jeremy W. Peters The New York Times

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.

 ?? Drew Angerer / Getty Images ??
Drew Angerer / Getty Images

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