alt=Kelsey DallasSALT LAKE CITY — Five years after legalizing same-sex marriage nationwide, the Supreme Court has disrupted the battle over LGBTQ rights yet again.
Justices ruled 6-3 Monday that it’s unlawful to fire someone for being gay or transgender. The federal ban on sex discrimination in the workplace covers sexual orientation and gender identity-based discrimination, the court said.
The original authors of the Civil Rights Act of 1964 might not have anticipated this decision, but the ruling is necessary in order to satisfy “the law’s demands,” wrote Justice Neil Gorsuch in the majority opinion.
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what (civil rights law) forbids,” he said.
The Supreme Court’s ruling closes the book on a group of combined cases stemming from workplace conflict in three different states. Justices were asked to decide if Title VII of the Civil Rights Act, which outlaws discrimination based on sex, offers legal protections to gay or transgender workers.
Traditionally, sex discrimination cases have focused on alleged mistreatment related to an employee’s biological sex, rather than sexual orientation or gender identity, according to legal experts. Female workers might file a Title VII case after being fired for being pregnant or discovering that they were paid less than a man doing the same job.
But, in recent years, several LGBTQ workers have filed sex discrimination claims and some have succeeded. Supporters of this approach believe that punishing someone for having a same-sex partner amounts to discriminating against them because of their biological sex.
During oral arguments on Oct. 8, 2019, the Supreme Court’s more conservative justices took issue with this broader interpretation of sex discrimination, arguing that protections for gay and transgender workers should be added to employment law by Congress, not courts.
“If the court takes this up and interprets (Title VII) to prohibit discrimination based on sexual orientation, we will be acting exactly like a legislature,” Justice Samuel Alito said during oral arguments.
At the time, Gorsuch also seemed concerned about a ruling in favor of LGBTQ workers. He worried that such a decision could lead to “massive social upheaval” and force business owners across the country to adjust how they operate.
“Nobody is questioning ... the legitimacy of the (discrimination) claims and the importance of them,” he said during oral arguments. But “it’s a question of judicial modesty.”
The court’s more liberal justices maintained that it’s the Supreme Court’s job to interpret the legal texts before them, not to worry about what the law’s original authors would say or how the justices’ actions are viewed by outside observers.
“For many years, the lodestar of this court’s statutory interpretation has been the text of a statute, not the legislative history,” Justice Elena Kagan said in October.
In the majority opinion, Gorsuch embraces this viewpoint, arguing that “only the written word is the law.”
“In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law,” he wrote.
Alito filed a dissenting opinion joined by Justice Clarence Thomas. Justice Brett Kavanaugh filed a separate dissent. All three justices argued that, in changing how civil rights law will be applied moving forward, the court is acting like Congress.
“There is only one word for what the court has done today: legislation,” Alito wrote, highlighting congressional efforts to add sexual orientation and gender identity protections to the Civil Rights Act.
Sen. Mike Lee, R-Utah, tweeted Monday that he shares Alito’s concerns.
Utah’s lone Democratic congressman, Rep. Ben McAdams, applauded the ruling in a press release that included praise for the Beehive State’s efforts to root out LGBTQ discrimination.
“There’s no place in our country for discriminating against an employee on the basis of sex,” he said. “Utah was a leader in outlawing workplace and housing discrimination against LGBTQ individuals and now the high court has ruled those protections are the law of the land.”
Many conservative legal advocacy groups decried the court’s decision on Monday, arguing that efforts to enforce the justices’ broad interpretation of sex discrimination will have devastating consequences.
LGBTQ rights supporters will cite the decision to sue religious organizations, disrupt women’s sports and put some companies out of business, they said.
“The Supreme Court got it wrong. The word ‘sex’ — still today and when Congress passed the Civil Rights Act of 1964 — refers to our biological reality as male or female,” said Ryan T. Anderson, a senior fellow with the Heritage foundation, in a statement.
As a result of this ruling, churches and other faith-based institutions will have a harder time operating according to their sincerely held beliefs, wrote Russell Moore, president of the Southern Baptist Convention’s Ethics and Religious Liberty Commission, in an article about the decision.
“The ruling … will have seismic implications for religious liberty, setting off potentially years of lawsuits and court struggles about what this means, for example, for religious organizations with religious convictions about the meaning of sex and sexuality,” he said.
Moore’s organization, along with Catholic leaders and other faith groups, filed a Supreme Court brief last fall urging the justices to rule against the LGBTQ employees. They claimed that a ban on firing someone for being gay or transgender could disrupt a church’s ability to require employees to respect religious teachings.
In a similar brief, leaders from Brigham Young University and other religiously affiliated schools argued that redefining sex discrimination in the employment context would lead to adjustments to a variety of other laws.
A win for LGBTQ workers might eventually disrupt student housing rules, health care policy and faith-based colleges’ tax-exempt status, they wrote.
“Altering the settled meaning of Title VII would negatively impact faith-based institutions of higher education in significant and far-reaching ways,” the brief from religious schools said.
Other faith groups have expressed support for the workers, stating that it’s possible to protect religious freedom and end LGBTQ discrimination at the same time.
“Turning away LGBTQ job applicants and employees, or terminating their employment due to their identity, isn’t religious freedom — it’s discrimination,” said Katy Joseph, director of policy and advocacy at Interfaith Alliance, in a statement.
In the majority opinion, justices brought up potential faith-related conflicts and noted that Title VII includes a religious exemption. People of faith can also cite the First Amendment’s free exercise clause and federal religious freedom protections to defend against sex discrimination claims, Gorsuch wrote.
“We are ... deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society,” he said.
The opinion did not outline how to balance protections for gay and transgender workers with religious freedom law, since the cases only tangentially dealt with religious beliefs.
“How these doctrines protecting religious liberty interact with Title VII are questions for future cases,” Gorsuch wrote.
He wasn’t the only person to highlight issues that remain unresolved. In its statement, the ACLU, which represented two of the three employees involved in the cases, argued that plenty of work still remains in efforts to protect members of the LGBTQ community nationwide.
“Congress must affirm today’s decision and update our laws to ensure comprehensive and explicit protections for LGBTQ people and all people who face discrimination,” said James Esseks, who leads the ACLU’s LGBTQ and HIV project.
The coalition behind the Fairness for All Act, a bill that would add sexual orientation and gender identity protections to federal civil rights law while also expanding religious freedom rights, similarly urged Congress to follow-up on the Supreme Court’s decision with legislation that would further expand — and clarify — nondiscrimination rules.
“The judicial system is not the appropriate place for the fine-tuning required so that federal civil rights can protect, at the same time, the rights of LGBT people and the freedoms of people and organizations whose values differ from them,” the coalition’s statement said.
The court’s decision highlights the value of the Fairness for All Act’s balanced approach, said Rep. Chris Stewart, R-Utah, who is sponsoring the legislation.
“Religious freedom is protected by the First Amendment, but isn’t addressed in this case. LGBT Americans are now protected under Title VII, but not elsewhere. My bill tackles those tough issues and provides answers,” he said in his statement.