Reflections on the Ruling

Many progressive activists and their media allies, in cheering the Supreme Court’s ruling in Bostock v. Clayton County, suggest that the decision is great and good because ending anti-LGBT employment discrimination is great and good. There is an absence of qualms about the fact that the Supreme Court is not meant to be a super-legislature, overriding Congress when that body fails to do what’s right. Ultimately, that’s not a good thing for our nation.

As I noted previously, a ruling extending the Civil Rights Act to LGBT Americans is preferable to passing the awful Equality Act, which would gut the religious freedom protections in the bipartisan Religious Freedom Restoration Act, although the Fairness for All Act would strike a better balance. That said, I tend to agree with the dissents to the ruling.

While Justice Alito goes overboard in his hostility to the majority’s legal analysis, he is correct in his central point:

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” 42 U. S. C. §2000e–2(a)(1). Neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, bills have been introduced in Congress to add “sexual orientation” to the list, and in recent years, bills have included “gender identity” as well. But to date, none has passed both Houses.
Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both “sexual orientation” and “gender identity,” H. R. 5, 116th Cong., 1st Sess. (2019), but the bill has stalled in the Senate. An alternative bill, H. R. 5331, 116th Cong., 1st Sess. (2019), would add similar prohibitions but contains provisions to protect religious liberty. This bill remains before a House Subcommittee.
Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII’s prohibition of discrimination because of “sex” still means what it has always meant.

Justice Kavanaugh makes a similar argument but acknowledges some important realities:

The policy arguments for amending Title VII are very weighty. The Court has previously stated, and I fully agree, that gay and lesbian Americans “cannot be treated as social outcasts or as inferior in dignity and worth.” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 9).
But we are judges, not Members of Congress. And in Alexander Hamilton’s words, federal judges exercise “neither Force nor Will, but merely judgment.” The Federalist No. 78, p. 523 (J. Cooke ed. 1961). Under the Constitution’s separation of powers, our role as judges is to interpret and follow the law as written, regardless of whether we like the result. Cf. Texas v. Johnson, 491 U. S. 397, 420–421 (1989) (Kennedy, J., concurring). Our role is not to make or amend the law. …
Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII. I therefore must respectfully dissent from the Court’s judgement.

Walter Olson noted in his commentary:

As a policy matter, extending anti‐discrimination law further into private employment decisions invades further the realm of private choice and individual liberty. As Alito notes in his dissent, it is especially hazardous to do so without the sort of conscious legislative back‐and‐forth that might result in the negotiation of thresholds and exemptions so as to handle controversial or burdensome cases. In the longer run, when Congress revisits this area in legislation, it will have a chance to rethink these points.

However, when “Congress revisits this area” it is likely to be with Democratic Party majorities that will remove any “thresholds and exemptions” that acknowledge historic rights of religious dissent from the majority.

5 Comments for “Reflections on the Ruling”

  1. posted by Kosh III on

    If I read it correctly, Kavanagh felt policy was more important than gay people.

    I’m quite sure he and some of the other regressives would gladly legislate from the bench to abolish abortion rights.

    Reply
    • posted by Edward Brown on

      1. The libertarians would prefer to abolish the civil rights act. Not a good idea IMHO.

      2. Anti-gay and anti-trans bias in employment is driven by either religion or sex-based sterotypes. Sexism has many links to homophobia and transphobia.

      Reply
  2. posted by Tom Scharbach on

    Many progressive activists and their media allies, in cheering the Supreme Court’s ruling in Bostock v. Clayton County, suggest that the decision is great and good because ending anti-LGBT employment discrimination is great and good. There is an absence of qualms about the fact that the Supreme Court is not meant to be a super-legislature, overriding Congress when that body fails to do what’s right. Ultimately, that’s not a good thing for our nation.

    I agree with the overall point, Stephen, but the Bostock opinion was a strict textual analysis of an existing law. The Court did not legislate in this case, let along “super-legislate” or “override Congress”.

    The Court has both the responsibility and obligation to override Congress (and state and local governments, as well, for that matter) when Congress (or state and local government) overstep Constitutional boundaries.

    The Court did so in Romer, Lawrence, and Obergefell, but it did not do so in Bostock, which was a straight-up case of statutory interpretation.

    Reply
  3. posted by Tom Scharbach on

    As I noted previously, a ruling extending the Civil Rights Act to LGBT Americans is preferable to passing the awful Equality Act, which would gut the religious freedom protections in the bipartisan Religious Freedom Restoration Act, although the Fairness for All Act would strike a better balance.

    I would quietly point out that the Court has not yet decided the question of how RFRA interacts with Title VII, as the Opinion notes:

    Separately, the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions. 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. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. §2000e–1(a). This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171, 188 (2012). And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA), 107Stat. 1488, codified at 42 U. S. C. §2000bb et seq. That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. §2000bb–1. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases. See §2000bb–3.

    But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too. Harris Funeral Homes did unsuccessfully pursue a RFRA-based defense in the proceedings below. In its certiorari petition, however, the company declined to seek review of that adverse decision, and no other religious liberty claim is now before us. So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.

    In short, the case did not decide how Title VII, in this context, interacts with RFRA and/or constitutional conflicts between Title VII and free exercise. The implications of the Bostock decision will be worked out of the course of a number of years, as the limits of the decision are tested in lower courts and ultimately decided by the Court. It may well be that the RFRA, by imposing a higher standard concerning interference with free exercise than Employment Division, is itself a bridge too far when and as applied to Title VII.

    Reply
  4. posted by Jorge on

    “Trolling Is a Terrible Way to Write Laws”

    At first I thought that was directed at Kavanaugh for trolling Scalia.

    “The Supreme Court Decides Who Is a Woman”

    Oh, good grief. If anything the decision was remarkable in refusing to assert whether someone with a penis is a man or a woman. Just someone with a sex.

    “Under Gorsuch’s reasoning, this would qualify as sex discrimination because a woman would not be fired for dressing as a woman. But that assumes that the Court has decided whether Stephens is a woman, which of course is the entire question in debate in arguments about the legal and social status of transgenderism”

    It assumes no such thing.

    Why?

    Because one, the court has already explained it can decide whether Stephens was born a male or a female.

    Two, even Justice Kavanaugh has explained his reasoning is the same for both a gay and transgender employee, so the article’s running at a 2-7 loss on that argument.

    Three, because in order for someone to identify as transgender, that person must define whether or not they have always or ever been a man or a woman. Someone, somewhere has made the observation, and it is the requirement that someone makes the observation, not who makes the observation, that is key.

    Alito was on stronger ground when he argued OMG there will be dress code lawsuits! At least he read the majority opinion.

    Sorry to say, but those conservatives who say “textual analysis is bankrupt” or some such (Rorschach, Gorsuch) nonsense have it right. Reading a book and two people will come to different views on it, as any person not a fundamentalist Christian could tell you about the Bible. It’s a sideways way to resist judicial legislation.

    Reply

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