It underscores the stakes in the 2020 election. It was spectacular seeing conservative Supreme Court Justice Neil Gorsuch hand a stunning victory on Monday to the LGBTQ community.
He was joined, no less, by conservative Chief Justice John Roberts, in addition to the court’s four liberals, making it a 6–3 decision that indeed LGBTQ people are protected against employment discrimination under Title VII of the 1964 Civil Rights Act.
The decision dropped a bomb on President Donald Trump’s re-election campaign. Anti-LGBTQ religious zealots in his base became outraged and demoralized as Gorsuch, Trump’s first Supreme Court appointment, rejected Trump’s own Justice Department’s arguments in a thunderous rebuke.
But it’s important to keep in mind how this landmark decision further underscores the stakes in the upcoming election.
Gorsuch, despite this ruling in Bostock v. Clayton County, is no friend to LGBTQ equality, and will likely bring heartache down the line. And Roberts, who read his blistering dissent from the bench in 2015’s Obergefell marriage equality decision, can’t be trusted, no matter the detour he made here. It’s vital that the court be kept from lurching further to the right — and that means electing a Democratic president.
Though it doesn’t seem it on the surface, President Barack Obama is actually responsible for what happened this week. And returning a Democrat to the White House will continue the progress.
Let’s start with Gorsuch. He’s a “religious liberty” fanatic, a justice who believes religious conservatives should be given exemptions when it comes to discrimination. In 2013, while on the 10th Circuit Court of appeals, he wrote a concurring opinion in the infamous Hobby Lobby case, which the Supreme Court ultimately upheld, allowing the arts and crafts chain to opt-out of certain kinds of contraception in the Affordable Care Act based on the owners’ religious beliefs.
Gorsuch has written in the past that issues such as gay marriage should be left to the states. And in a provocative dissenting opinion in which the Supreme Court in 2017 rejected Arkansas’s attempt to keep the names of both parents of same-sex married couples off of their children’s birth certificates, Gorsuch practically invited states to challenge the Obergefell marriage equality ruling itself.
In the Bostock case (which is actually three cases combined), however, he faced a dilemma. A devotee of textualism, he believes the text of a statute should be followed no matter what the writers of the law intended. He even acknowledged that legislators who wrote the Civil Rights Act weren’t thinking about sexual orientation or gender identity. No matter, the term “sex,” a protected category in the law, covered both, he concluded.
It’s laudable that Gorsuch remained consistent with his legal theory (unlike Samuel Alito, another textualist, who wrote an ugly, twisted dissent), even though during oral arguments he ridiculously claimed that doing so might create “massive social upheaval.” Gorsuch surely knows there are many other areas in which strictly following the text of the Constitution or a law will benefit conservatives, and this ruling gives him cover to do so in the future.
And he can always carve out odious religious exemptions to LGBTQ rights, and, in fact, noted that in his decision.
“We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society,” Gorsuch wrote, explaining that none of the employers’ cases before the court raised religious liberty concerns. “[H]ow these doctrines protecting religious liberty interact with Title VII are questions for future cases, too.”
As for Roberts, who isn’t a textualist, it’s a mystery what brought him from the hardcore dissent in the Obergefell case to now joining a landmark ruling for LGBTQ rights. Perhaps he didn’t want to be to the right of Gorsuch.
Whatever their reasons, both justices were actually prodded by Obama administration actions years earlier. This ruling at the Supreme Court (upholding several lower court rulings) was presaged by rulings during the Obama era at the Equal Employment Opportunity Commission, where its first openly-lesbian commissioner, Georgetown University Law Professor Chai Feldblum, served from 2010 to 2018.
The EEOC in fact ruled that gender identity is protected under Title VII in the case of Aimee Stevens in 2014, the now-deceased plaintiff in one of the cases that just won before the Supreme Court. She was fired from a funeral parlor because she acknowledged she was transgender. In 2015, the EEOC ruled that sexual orientation is protected under Title VII as well.
Both were ground-breaking decisions that wouldn’t have happened without the EEOC’s Feldblum driving the then-novel legal interpretation on an issue that gay advocates had been failing to make progress on via legislation in a partisan Congress for many years.
At the time of the 2015 EEOC ruling, legal scholar Dale Carpenter, wrote in the Washington Post: “If the EEOC’s ruling sticks, it will have accomplished what more than 40 years of legislative advocacy in Congress could not: full protection of gay men and lesbians from job discrimination throughout the United States.“
And now those EEOC rulings have in fact stuck, right up to the Supreme Court.
Last year, Feldblum, who left the EEOC during the Trump administration, reflected on the rulings. “It’s ironic that some people thought that the EEOC was expanding the law,” she said. “To me, that was the logical meaning of the text as Congress had written.”
The EEOC under Obama, having led on these cases — and eventually bringing two conservative Supreme Court justices to validate its thinking — is a vivid example of how important it is to have a president in the White House who will put forward-thinking people at government agencies, rather than the ideologues and grifters Trump has put in place throughout the government.
That’s not to mention that a Democratic president will keep the conservative Supreme Court from veering further to the far right. This week’s ruling on LGBTQ equality is yet another of the many reasons Trump must go.