Andrew Sullivan’s looks at what’s likely to following the achievement of all of the gay-rights movement’s original nondiscrimination goals.
There are political matters on which Sullivan and I disagree, but also many on which he is spot on. And in looking forward, it’s hard to disagree with what’s coming for LGBTQ+ activism. As Sullivan writes:
If current trends are any indication, [the Human Rights Campaign and similar groups] will simply merge into the broader intersectional left and become as concerned with, say, the rights of immigrants or racial minorities as they are with gay rights. In the political climate on the left at the moment, singling out gays as a separate category is increasingly impermissible.
Despite my reservations about judicial over-reach, the political response is certainly worth noting. This would be sure to drive the GOP-haters and the Trump-demonizers up the wall, if they bothered to consider it:
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.
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.
WASHINGTON: The high court, in a 6-3 decision, said the broad language of the Civil Rights Act of 1964, which outlaws workplace discrimination on the basis of sex, should be read to cover sexual orientation as well. Conservative Justice Neil Gorsuch wrotehttps://t.co/cV3lQg3lBX
“The Government can’t force doctors to perform procedures that they are medically, professionally or morally opposed to performing. Remember, this is a ruling on the type of procedures, not the type of patients.”
Also from the LCR fact sheet:
So was anything “rolled back?” No – you can’t ‘roll back’ something that was never actually implemented.
So this isn’t LGB, just T(ransgender)? Yes, just gender identity.
So do medical care providers now have license to discriminate against transgender individuals for things like cancer, a broken arm or the common cold? The latitude now allowed is not in the patient – it’s in the course of treatment.
Update: Following the U.S. Supreme Court decision in Boystock v. Clayton County, it’s likely the revised rule will fall. That will make activists happy but means continued conflict with faith-based healthcare providers who the state will require to perform gender-reassignment procedures that violate deeply held faith convictions. As Justice Alito wrote in his dissent:
Healthcare benefits may emerge as an intense battleground under the Court’s holding. Transgender employees have brought suit under Title VII to challenge
employer-provided health insurance plans that do not cover costly sex reassignment surgery. Similar claims have been brought under the Affordable Care Act (ACA), which broadly prohibits sex discrimination in the provision of healthcare. Such claims present difficult religious liberty issues because some employers and healthcare providers have
strong religious objections to sex reassignment procedures,
and therefore requiring them to pay for or to perform these
procedures will have a severe impact on their ability to
honor their deeply held religious beliefs.
To the secular left, that is of no consequence, but it should be to those who value the liberties historically protected by the U.S. Constitution.
Brad Polumbo writes that the Human Rights Campaign, the nation’s largest LGBT lobby, once “worked with Republicans initially to advance the Employment Non-Discrimination Act, an early piece of legislation that would have added sexual orientation as a protected class under federal anti-discrimination employment laws.” More recently, however, “the group put out a statement blasting as ‘deeply dangerous’ Republican congressman Chris Stewart, who introduced a gay and transgender rights bill [the Fairness for All Act], because it disagreed with some of the exceptions his bill contained.”
Because the original thread on the Fairness for All Act was getting too long, I’m continuing it here.
Plus an observation: Ever since the Employment Non-Discrimination Act (ENDA) was introduced, whenever it looked like a version of ENDA had a chance at passing, the LGB (later LGBTQ) political lobbies would move the goalposts so that it would not have enough support—for example, adding gender identity in 2007 (which was too much even for a Congress with supermajority Democratic control during the first two years of the Obama administration, when no action was taken on ENDA), and now by replacing ENDA with the over-reaching Equality Act, which would, among other things, roll back religious conscience protections under the bipartisan Religious Freedom Restoration Act that Bill Clinton signed.
A cynic might say that the Human Rights Campaign’s worst nightmare would be an anti-discrimination bill that could actual pass, because once it did a major impetus for HRC’s fundraising could be undermined.