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.) Continue Reading...