In a somewhat surprising decision, the United States Supreme Court issued its long awaited decision on Title VII and the LGBTQ community. There were several unexpected things in the opinion. Going in the best bet was that the Supreme Court would find that discrimination against transgender individuals fit the requirement that the discrimination was “on the basis of sex,” but that the Supreme Court would find that “on the basis of sex” did not cover sexual orientation. Second, because of this potential split in the reasoning, there was a good reason to expect two separate opinions, one dealing with the two homosexual employees and one dealing with the transgender employees. Third, as I noted on Saturday, it looked like Chief Justice Roberts would be writing at least one of the opinions.
Instead, what we got was one opinion covering all three cases that sided with the employees. Even more unexpected was that the justice holding the stolen Supreme Court seat — Justice Neal Gorsuch — was the author of the opinion. (Yes, part of me is having thrills of joys at how Trump is going to be able to explain this one to the folks who just voted out a conservative Republican congressman for officiating at a same-sex marriage.) Of course, the opinion was not unanimous, (6-3 with Chief Justice Roberts joining the majority) and two justices (Justice Alito and Justice Kavanaugh) wrote dissents driving the total length of the opinions in this case to 172 pdf pages.
Now for the bad news. First, the dissenters tried to hide their true colors on the issue of equality by painting this case (like the previous decisions in the gay marriage cases) as being about what the law is, not what the law should be. They even went so far as to express the incredible belief that, but for this decision, we are within years of Congress acting to expand anti-discrimination laws to cover sexual orientation, claiming that the Supreme Court was overstepping its bounds by acting. (Of course, they failed to identify the reason why the proposed fix has never managed to get past both houses in the same session — Republican Party control of the other house. See the above-mentioned result this weekend in the nominating convention for Virginia’s Fifth District.)
Second, the majority opinion was not about recognizing gay rights. Instead, it was based on the argument that discriminating against a man for loving a man was not discriminating based on his sexual orientation but rather based on his sex (i.e. treating him different than a woman for the same behavior). While this solution gets Title VII protection for gays and lesbians, it is not the same as an opinion based on the equal rights of gays and lesbians.
Third, this case is solely about Title VII. While it is likely that future cases will apply a similar reasoning to other civil rights laws, not all civil rights laws include provisions barring discrimination based on sex. So, it may be some time before we see how far this decision reaches.
Fourth, and most important, Title VII has some holes. It does not cover tiny employers (less than fifteen employees). It does not cover religious groups hiring people for religious positions which — in some cases — may cover school teachers in religious schools (see several cases still pending on the “ministerial” exception in Title VII).
More importantly, on this issue, the opinion tosses a very big grenade into settled civil rights laws. As has been noted in two many posts to count, in the late 1980s, in response to a very bad Supreme Court decision, Congress passed the Religious Freedom Restoration Act which, in effect, created a free exercise exemption to many federal laws (whether there is such an exception is to be determined on a case-by-case basis). In the opinion today, Justice Gorsuch expressly raised the issue of how the RFRA might apply to Title VII while noting that the actual impact of the RFRA on Title VII was for another day as neither employer claimed a religious reason for their discrimination. Of course, when Title VII was passed, many claimed a religious reason for discriminating on the basis of race. With this casual mention of the RFRA, we may now see an effort by employers to claim that any racial (or more importantly) sexual discrimination is based on religious reasons. We have already seen what a mess a broad reading of the RFRA has done to the contraceptive mandate in Obamacare. Imagine when a company claims that it refuses to hire women for management positions because the Bible says that women are supposed to be subservient to men. (Technically, this interpretation is a misstatement of the relevant passages, but it would not be the first time that the Bible was misread to support a position.)
In short, today is a big step toward equality. But, it is not the end of the road.
