The Supreme Court Rules

I have said that a ruling extending the Civil Rights Act to LGBT Americans would be far preferable to passing the awful Equality Act, which would gut the religious freedom protections in the bipartisan Religious Freedom Restoration Act. However, the Fairness for All Act would strike a better balance.

Worth repeating:

8 Comments for “The Supreme Court Rules”

  1. posted by Tom Scharbach on

    Please remember that Democrats almost all voted against Neil Gorsuch …

    Don’t get so busy trashing Democrats to lose track of the fact that the Trump administration (in a brief and in the person of the Solicitor General at oral arguments) argued that Title VII does not include sexual orientation or gender identity, contrary to the majority opinion but in line with the minority dissents. I’m surprised, but glad, that neither Justice Gorsuch nor Chief Justice Roberts bought into that nonsense.

    I haven’t yet read the opinion (and that’s important because the reasoning of the opinion is as (or more) important that the holding in order to make predictions about the operation of Title VII in future litigation of this type), but at first blush it looks like President Trump may have nominated a second Justice Kennedy, a Justice who was expected to hew the conservative line but doesn’t when it comes to equal treatment under the law for gays and lesbians.

    That would be ironic (because Republicans would not even consider President Obama’s nomination of Judge Garland, in part because he was expected to vote pro-equality), but a good thing for the future of “equal means equal”. Let’s see what future cases bring in that regard.

  2. posted by Tom Scharbach on

    For those of you interested, the Opinion is worth reading, as well as the two very length dissents by Justices Alito (joined by Thomas) and Kavanaugh.

    I think that reading the Court’s Syllabus (the first 4 pages of the linked document, in somewhat smaller typeface than the Opinion and dissents) will probably be sufficient to understand the nature of the Opinion. The Syllabus is a summary of the Opinion prepared by the Reporter of Decisions and is remarkably clear in this particular case.

    As is clear from the Syllabus and the Opinion itself, Justice Gorsuch and the other five Justices who joined in the Opinion are in accord that the Court’s existing precedent mandated the decision, and the Opinion squarely stands on the Court’s existing precedent.

    That is important because it suggests that both Justice Gorsuch and Chief Justice Roberts honor precedent and are unlikely to join Justices Kavanaugh, Alito and Thomas in ignoring precedent that stands in the way of a conservative result (at least in cases where the precedent is clear). That, in turn, suggests that we may see further favorable decisions by the Roberts Court on LGBT rights in the future, based on precedent establish by the cases already decided.

    I’m not sure how Justice Gorusch’s and Chief Justice Roberts’ willingness to follow existing precedent will play out in the public accommodations cases before the Court (predicting SCOTUS decisions is always a crapshoot), although it suggests that the Court might follow Employment Division, written by Justice Scalia, which held that a law of general application (such as a non-discrimination law) may infringe on free exercise so long as the infringement is not targeted and the law of general application has a rational basis.

    Employment Division was an end run around and repudiation of Yoder (a case about mandatory school attendance over the age of 16 as applied to the Amish), which was commonly understood to have extended the Sherbert rationale to state laws of general application when those laws infringed on free exercise.

    Employment Division effectively reinstated the Reynolds, a polygamy case that held that the “Free Exercise Clause” does not prevent the government from passing laws of general application that have an incidental impact on specific religious practices.

    However, it is not a dead certainty the Employment Division is a tight fit with the public accommodations cases before the Court, so I suggest that prediction based on Bostock is probably not safe ground on which to stand.

  3. posted by Tom Scharbach on

    If you are interested in an ideology-neutral commentary on the decision, the SCOTUSblog commentary/analysis by Amy Howe is a fair analysis, I think.

  4. posted by Tom Scharbach on

    I have said that a ruling extending the Civil Rights Act to LGBT Americans would be far preferable to passing the awful Equality Act, which would gut the religious freedom protections in the bipartisan Religious Freedom Restoration Act. However, the Fairness for All Act would strike a better balance.

    It is more or less irrelevant now,

    At this point LGBT folk are protected under Section VII (and presumably other similarly-worded sections) of the Civil Rights Act of 1964, and neither the Equality Act nor the Fairness for All Act is likely to be passed by both branches of Congress and signed by the President.

    The only remaining major legal/constitutional questions are whether or not RFRA applies to the non-discrimination sections of the Civil Rights Act of 1964 (presumably it does, at least on its face), and whether or not that application is constitutional (quite possibly not, for a variety of reasons). Those questions will be decided in the courts over the next few years.

    The more interesting question is how a man like Justice Gorsuch got on the Supreme Court in the first place.

    President Trump, as a candidate, won over the conservative Christian vote by making clear promises that he would appoint anti-equality Justices and judges. Overall, he’s done just that, in spades.

    When President Trump nominated Justice Gorsuch, the conservative Christian leaders that so ostentatiously anointed him in the Oval Office were ecstatic, if the statements and press releases from that time are to be believed. Now they are furious.

    So what happened? Did President Trump just blow it when he nominated Justice Gorsuch? Is it that simple? Or was President Trump led down the primrose path by quislings within The Federalist Society, which vetted candidates for the President? Or was President Trump (with or without cooperation by quislings within The Federalist Society) snookering conservative Christians, playing a sly double game with them? Or was Justice Gorsuch himself a quisling, intentionally misleading President Trump, Senate Republicans and conservative Christians?

    I have no idea, but the President has some serious explaining and a**-kissing to do before the election, that’s for sure. His whole “But I gave you the Court!” brag is down the tubes right now.

    The President is quoted tonight (by Fox News) as having this to say: “They’ve ruled. I’ve read the decision. And some people were surprised. But they’ve ruled and we live with their decision. That’s what it’s all about. We live with the decision of the Supreme Court. Very powerful. A very powerful decision, actually.”

    I have no idea what that means. I guess I’ll have to wait for tonight’s tweet storm.

  5. posted by Jorge on

    “I have said that a ruling extending the Civil Rights Act to LGBT Americans would be far preferable to passing the awful Equality Act, which would gut the religious freedom protections in the bipartisan Religious Freedom Restoration Act.”


    Still reading the majority opinion. I’m sure I’ll be back on this later. I am going to say it certainly is interesting reading a “civil rights” decision authored by a conservative. This one doesn’t read one whit like a civil rights decision. The only thing that remotely smells of civil rights in it is the name of the bill. My favorite quotes so far:

    “Title VII doesn’t care.”

    “…imagine an applicant who doesn’t know what the words homosexual or transgender mean.”

    “If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.” (Watching the opinion contort itself to remind the reader a transgender woman and a non-transgender woman are two different sexes for the purpose of illegal sex discrimination without actually saying it was highly entertaining.)

  6. posted by Jorge on

    Alito’s opinion (which is joined by Thomas) is a train wreck. Its howling sound and fury seems to infect its ability to reason. I’m happy to be done with it (skipped a middle portion I thought completely irrelevant, restarted right into the equivalent of Leviticus bummer territory). It’s not bizarre. It’s just that every time you weigh it against the majority opinion’s reasoning it falls to pieces, and it never recognizes it. The reverse doesn’t happen.

    There is a key difference between the majority opinion and Alito’s dissent. It comes to mind when I remember Thoma’s concurrence on the 1998 Oncale case. The majority decision emphasizes that Title VII prohibits discrimination because of sex. Alito’s dissent emphasizes that it prohibits discrimination because of sex. Alito’s failure to give sufficient credit to this dispute sabotages almost his entire opinion. The rest collapses because of his inattention to the majority’s premise that Title VII protects individuals, one person at a time.

    And just because Justice Alito doesn’t think the DSM I authors were too stupid to understand what sex means doesn’t mean he has proof that they were dragged before the Supreme Court and forced to defend their smarmy pants position against Justices too smart to fall for passions of the mob. Why is the “I know it when I see it!” conviction of one idiot in the mob not good enough just because the “I know it when I see it!” conviction of two others says differently?

    I was a teenager in high school when I learned about the Oncale case; at the time it was being appealed to the Supreme Court. It was before I knew I was gay, but after the time I bullied over suspicions I was gay. Reading about it, and reading that it was even a contested issue, distressed me greatly. The issue was clear to me then when my own experience was much more important than the language used to describe it. I think we fall a little too easily into the trap of defining things by common labels like “gay” or “straight”. If I refuse the label, someone else defines, me, and defines me by what I should be as a man, by what kind of man I should be. This gives me rage, despair, and helplessness. I don’t think it’s right to hide that by the popularity of a different label’s meaning, or the unpopularity of an already sexist social norm. I didn’t find out the decision until years later, when my life was already easier. It helped my life stay that way.

  7. posted by Jorge on

    Gorsuch’s [correction: Kavanaugh’s] opinion is better. It seems to recognize the traps in the majority opinion better and ignores them. It doesn’t ignore the majority decision’s stuck on “because of” but also refuses to get stuck on “sex”. It says you have to consider the entire phrase. And then it mostly ignores everyone else and goes off on its own.

    The cleverest part in my view was ignoring the majority opinion’s discussion of precedent (by far the strongest part of the decision) and bringing in its own judicial precedents to say “not one judge or justice said sexual orientation discrimination was really sex discrimination.” It was important to bring the judicial system into it and effective to suggest there’s more judicial support on his side. Do I agree with the argument? No. Because what he sited was not precedent. Not one HRC attorney dared to argue it at the time. The Supreme Court doesn’t usually go digging into rabbit holes when someone’s tossing it carrots. Or something like that.

    So what happened? Did President Trump just blow it when he nominated Justice Gorsuch?

    No. Ronald Reagan blew it when he nominated Justice Scalia.

    Hahahaha! I’ve never enjoyed a “troll Scalia” frenzy quite so much as the one Kavanaugh penned. It’s like there’s blood coming out of Alito’s eyes. It’s unusual, but it’s not like it never happens. I remember the Rehnquist/Scalia split on Miranda rights, and after that there was the Roberts/Kennedy blowup over teh Affordable Care Act. Conservative justices simply disagree with each other at times.

    • posted by Jorge on

      (Okay I see I confused Kavanaugh and Gorsuch. I’m sure not for the last time.)

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