17 June 2020

On the Complexity of the Supreme Court Decision

I, and many others, elided the complexity of the Supreme Court's decision on discrimination.  The decision did not make sexual orientation and trans identity protected per se, but rather covered under the Civil Rights Act under discrimination by sex, i.e., physical gender in terms of the Act.  To appreciate the distinction, note the following from Sean Trende from Real Clear Politics: 

Or, consider an example from Justice Samuel Alito’s dissent. He suggests that a woman who is a model employee, but is fired after bringing her wife to a Christmas party, is plainly being fired on the basis of sexual orientation, not sex. According to Alito, the only new information gleaned is the employee’s sexual orientation. But this misses the mark. The employer has also learned that the woman is married to a woman, something that would be of no consequence for a man. By burdening that relationship, the employer is treating female employees differently than male employees.

There are some consequences for the way this argument runs. Because discrimination on the basis of sexual orientation and transgender status is not prohibited as such, employers can probably announce their displeasure at gay or transgender individuals in the workplace in a way that they cannot with women or racial minorities. Counsel for the plaintiffs also conceded at argument that a company that prohibited gays or lesbians from working at the establishment but made those decisions before learning the applicant’s sex might be immune from suit. 

Perhaps more importantly, the court sidestepped the question of whether the Religious Freedom Restoration Act of 1993, which keeps laws from being interpreted in a way that burdens religious belief, creates an exception here. That will be a battle fought in subsequent years, and it will be nuclear.

https://www.realclearpolitics.com/articles/2020/06/15/why_roberts_gorsuch_voted_with_liberals_on_lgbt_case_143456.html  (15 June 2020)

In my mind, this does not diminish the momentousness of the decision.  In our judicial system, change happens on a step-by-step basis for the most part, such is the nature of a Common Law system.  Even the thunderbolt of the marriage decision in 2015 was not entirely unexpected, and was preceded by numerous precedents in the states.  The decision does not eliminate discrimination completely at one sweep, but it does remove a significant chunk of it, and paves the way for orientation and identity to eventually become protected in and of themselves.  That is very good.  More cases and more decisions will continue to refine and expand the interpretation of the law.  And there is the social context to consider.  Though theoretically an employer can ban homosexual and transgender employees by stated policy before the hiring for any specific position, most--except for diehard ideologues--would shy away from the controversy this would produce. 


  1. Constitutional interpretation is extraordinarily complex,

  2. the pieces are beginning to fall in place