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Monday, June 15, 2020

Justice Kavanaugh foresees 2020 Blue Wave and other thoughts on Bostock

I have asked my colleague Kerri Stone to write something about today's decision holding that LGBTQ discrimination is sex discrimination; I hope to post that later today. I add a couple of points/questions.

The open question will be whether this means discrimination based on LGBTQ status is sex discrimination for purposes of the 14th Amendment (triggering intermediate scrutiny) and other statutes such as Title IX, Equal Pay Act, public accommodations, etc. The answer would seem to be yes; Gorsuch's major premise is that one cannot discriminate against a person on the basis of sexual orientation without discriminating against that person on the basis of sex. Even if the reason the employer targets the plaintiff because of who she is attracted to or her sex at birth, the mistreatment must pass through sex. And those other provisions protect individuals not groups, the other premise of Gorsuch's analysis.

That question could affect the outcome when an employer argues that the First Amendment or RFRA displaces Title VII, something the majority leaves for another day. If LGBTQ discrimination is sex discrimination deserving of greater scrutiny, does that mean the government's interest in preventing that discrimination (through Title VII) is compelling for RFRA purposes? Does it receive more deference than an interest in prohibiting a form of discrimination receiving rational-basis review? The assumption by even the SG in Masterpiece Cake Shop is that the religious-freedom argument could not fly as to race discrimination but it could as to LGTBQ discrimination because that received lower scrutiny. What happens in the middle?

Gorsuch's writing in this opinion reminds me of Kagan in its informality, with a lot of "imagine if you will" hypotheticals and illustrations.

A lot will be made of the Chief joining this opinion, especially in light of his dissent in Obergefell. He recognized the sexual-orientation-is-sex argument in that case, asking counsel about it during argument. But it did not persuade him with respect to marriage and he did not address it in his dissent. Did he change his mind? Does he see this statute as different than the Fourteenth Amendment (and perhaps other statutes)?

Two interesting theories floating around Twitter (which may fit together). Katherine Franke suggests that the original majority was the four liberals and Gorsuch and that the Chief joined so he could assign the case to Gorsuch and get a narrower opinion, rather than Ginsburg assigning the opinion to herself and producing something broader. Marty Lederman speculates (based on October case assignments) that the Chief kept this opinion for himself to rule against the plaintiffs, while Gorsuch was undecided; when Gorsuch would not join that opinion, he wrote his own going the other way and the Chief came on board. Both moves can be explained by the Chief's desire to hold the assignment. Of course, Ginsburg might have assigned the opinion to Gorsuch rather than keeping it for herself to reward him for the switch and to keep him on board (a very Brennan/Stevens move).

The Chief's switch from Obergefell to today may explain the final paragraph in Kavanaugh's dissent:

[i]t 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.

Compare this with the final paragraph of the Chief's Obergefell dissent:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

Finally, the piece that prompts the title of this post: Here is the first paragraph in the conclusion to Kavanaugh's dissent:

It was therefore easy to envision a day, likely just in the next few years, when the House and Senate took historic votes on a bill that would prohibit employment discrimination on the basis of sexual orientation. It was easy to picture a massive and celebratory Presidential signing ceremony in the East Room or on the South Lawn.

This can be true only if "in the next few years" (meaning this year, really) the Democrats gain unified control of the political branches, including likely with a filibuster-proof Senate majority. No Republican-controlled body would pass and no Republican President would sign such a bill. I am certain Kavanaugh's does not want this to happen. But I hope he is right.

Posted by Howard Wasserman on June 15, 2020 at 02:24 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


I think you can very well find a way to distinguish the constitutional and statutory here, but there was a way to limit Windsor too. I have my doubts if in practice we will go down a different path that there. Though, I admit, the two are not completely the same, of course.

Posted by: Joe | Jun 16, 2020 10:03:46 AM

Although many are hailing today's Supreme Court ruling that employers may not discriminate in hiring and firing employees based upon their sexual preferences (e.g., being homosexual) or sexual identity (e.g., being transgender), it does not provide all of the protections LGBTQ people are seeking, nor necessarily suggest that such additional protections will be provided in future court decisions.

Many LGBTQ advocates have argued that persons must be able to use any restroom, locker room, or shower facility set aside for persons of their sexual identity, even if it is contrary to their anatomy; that M2F transgender people must be permitted to compete on female teams and in sports events limited to females; and that many of their desires must be accommodated even if they conflict with the strongly held religious beliefs of employers or of those who operate places of public accommodation.

But a reading of the reasoning of the majority opinion does not necessarily seem to lead inexorably to those conclusions

The Court did not rule that "sex," as that term is used in the statute, includes - or is necessarily meant to cover - either sexual preference or sexual identity.

What it did say in that when a company fires an employee for conduct which would be tolerated if the employee were of a different gender (e.g., having sex with a female), that decision is based upon the sex of the employee (e.g. if it's OK for a male, but not OK for a female).

Similarly, when a company fires an employee for dressing in a manner which would be tolerated if the employee were of a different gender (e.g., wearing a dress and/or lipstick), that decision necessary is based upon the sex of the employee (e.g., if it's OK for a female but not for a male).

But it is at least possible that the same logic and reasoning may not apply if at least some restrooms, locker rooms, or shower facilities are set aside for persons who do not have a penis, or if certain sports teams or sporting events are restricted to persons with a vagina.

This is not just speculation, notes Banzhaf, because the majority decision said exactly that:

"The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual 'because of such individual's sex.'"

With regard to possible conflicts between LGBTQ issues and strongly held religious beliefs, the Court said, "separately, the employers fear that complying with Title VII's requirement in cases like ours may require some employers to violate their religious convictions."

But the Court noted the possible relevance of several doctrines:

1. "As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. §2000e-1(a)."

2. " the First Amendment can bar the application of employment discrimination laws "to claims concerning the employment relationship between a religious institution and its ministers." AND

3. "the Religious Freedom Restoration Act "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."

Thus the Court concludes that "how these doctrines protecting religious liberty interact with Title VII are questions for future cases too."

So it appears that because the Court resolved the issues in these cases without the need to decide whether the statutory term "sex," in this or other statutes, necessarily includes sexual orientation and/or sexual identity directly, some issues important to the LGBTQ community remain to be decided, and the executive branch may have (or at least claim to have) some leeway regarding how it deals with some issues.

Posted by: LawProf John Banzhaf | Jun 15, 2020 4:15:33 PM

The Equal protection clause could I think be distinghuished on a number of grounds, if one wanted. Perhaps most interestingly, does textualism apply to interpretation of Supreme Court opinions? A more purposive interpretation would suggest their opinions on sex discrimination do not outlaw discrimination on basis of sexual orientation.

Posted by: Jr | Jun 15, 2020 2:42:49 PM

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