Supreme Court’s ruling on LGBTQ rights is a rare good news in today’s America.
I saw his photo in quite a few places this morning. Riding on a bike share, his face covered as required, he holds his left hand aloft holding a Rainbow flag. The front of the flag seems crushed and rumpled, but the back is fluttering in barely a breeze; if you look again you will see the same colors on his shirt. He looks to his left, toward the magnificent façade of The Supreme Court building. Its majestic columns, as well as the entire front of the building, are awash with bright Sunshine. It is still early in the morning, few people are milling around in the steps of the Court, not a soul on the street in between them and the man. You’ll be forgiven to think it is a Black and White montage, even trees look grey against the sun-soaked Courthouse; but for the Rainbow.
Rainbows and Sunshine are essential elements for a brighter day; indeed, it is one in America today.
Three similar cases, together, were decided yesterday by The Nine. In New York, a skydiving instructor, Donald Zarda, alleged he was fired in 2010 because he was gay, his estate was a Plaintiff after his death. Gerald Bostock alleged he was fired as a child-welfare services coordinator after joining a gay softball league. Aimee Stephens was fired from her job at a funeral home when she let it be known as a transitioning person she would not present as a man. Ms. Stephens did not live to see the outcome of the case, she died on May 12 in Detroit.
In a picture in front of the same steps taken in October 2019, Ms. Stephens, on a wheelchair, appears vulnerable physically but solemn and resolute. Just like the millions her case represents.
The Supreme Court ruled that the language of the Civil Rights Act of 1964, which forbids workplace discrimination on the basis of sex, prohibits discrimination on the basis of sexual orientation or gender identity. “An employer who fires an individual merely for being gay or transgender defies the law,” wrote Conservative Justice Neil Gorsuch, on behalf of the 6-3 majority. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it wouldn’t have questioned in members of different sex. Sex plays a necessary and undisguisable role in the decision; exactly what Title VII forbids.” “The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions,” Justice Gorsuch wrote, “because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”.
To make matters easy to comprehend, he offers an example. An employer has two workers who are attracted to men, one male, one female. If the male employee is fired because of that attraction, the “employer discriminates against him for traits or actions it tolerates in his female colleague.” In other words, “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” Case Closed.
Not so for the three dissenters. In a separate dissent, Justice Kavanaugh Brett Kavanaugh wrote even if the Civil Rights Act of 1964 did not explicitly cover LGBTQ employees, ““Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law,” Justice Kavanaugh wrote. “They have advanced powerful policy arguments and can take pride in today’s result”.
Justice Alito, writing for himself and Justice Thomas, in dissent warned against celebrating the decision as “an unalloyed victory for individual liberty.” Instead, he predicted, it “will threaten freedom of religion, freedom of speech, and personal privacy and safety,” “The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of ‘sex’ is different from discrimination because of ‘sexual orientation’ or ‘gender identity.’ And in any event, our duty is to interpret statutory terms to ‘mean what they conveyed to reasonable people at the time they were written,’”
John Bursch, an attorney with Alliance Defending Freedom that argued on behalf of the funeral home in Michigan that fired Ms. Stephens, “Civil rights laws that use the word ‘sex’ were put in place to protect equal opportunities for women,” . Alleging the Court redefined the meaning of “sex” he argued, it “undermines those very opportunities—the ones the law was designed to protect.”
If you are scratching your head in apprehending how the Court’s ruling endangers the protection for women, you are not alone. Fear-mongering by the dissenters run amuck. “Transgender persons will be able to argue that they are entitled to use a bathroom or locker room that is reserved for persons of the sex with which they identify,” Justice Alito wrote, or, religious entities could be compelled “to employ individuals whose conduct flouts the tenets of the organization’s faith,”
Poppycock, said Gorsuch. [Statutory warning: he did not use that word]. “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,’” Civil Rights Laws routinely go against religious views and Congress has added tangible protections for religious objectors. For example, Justice Gorsuch notes, Title VII itself exempts religious organizations and the Religious Freedom Restoration Act of 1993 provides a broad framework to accommodate beliefs when they conflict with Federal law.
None of that was in front of the Court yesterday and all of that is left for some other day.
It is quite remarkable to note the sniping between two leading voices, each of whom is respected for being a “textualist” and “originalist”. The case was simple for Justice Gorsuch on the majority; the text of Title VII of The Civil Rights Law of 1964 forbids workplace discrimination against an individual “because of…sex.” Justice Alito, dissenting, calls the ruling a “pirate ship. It sails under a textualist flag” but updates “old statutes so that they better reflect the current values of society.”
Imagine what the contra ruling would have meant. Look at your gay brothers and sisters and try to explain why they may fear being fired, passed over for promotion, or simply not hired, as was the case at over half of the country. Explain to them why the rights of equal protection under law dismembers, why they cannot be gainfully employed even if they are ready, willing, and able. Explain to them why they have to stay in the closet or face retribution, not that this ruling prevents worse outcomes outside of their workplace.
Maybe that is what Justice Alito hopes for LGBTQ people. Maybe that is why he is tying himself to knots when his fellow conservative textualist rules on the basis of text alone; Justice Gorsuch takes 172 pages to destroy every argument that can be had against the majority’s opinion. Alito’s attempt to reinterpret the text represents an allegiance to a “living Constitution” he claims to find abhorrent, just because a textual interpretation fails to conform to a set societal view. He proves to be an appalling mouthpiece for a world that never was great for many of us, a society that was killing humans for being who they are; their race, their sexuality, their origin, their religion to name a few. Being denied career opportunity denies, in effect, one and all of the unalienable rights of life, liberty, and pursuit of happiness and there is no conceivable reason our creator, or the Framers, would exclude LGBTQ people from their fruits.
Even if this ruling prevents, over time, these views from being acted upon in the society, there is one place where they can still be acted upon in a job, freely and with deadlier consequences. That is within the opulent, and awe-inspiring, caverns of the US Supreme Court. As The Nines sit in front of the four pillars of its chamber, they are fully free to interpret to suit their personal likes and views. Despite all protestations, they have always been and shall always be. It is our job to mold the Court to make it ready, representative, responsible and responsive to the future.
Perverse retrogressive views have no place in the leadership of our Country, nor in our Highest Court. Let that be a call for action for all of us.
[Partha Chakraborty, Ph.D., CFA is an entrepreneur in Water technologies, Blockchain and Wealth Management in US and India. All opinions are of the Author alone, and do not necessarily represent that of any organization he may be part of. The author alone is responsible for any error or omission].