The Supreme Court finds sexual orientation and identity to be protected classes (1)

On June 15, 2020 the United States Supreme Court handed down its decision in the case of Bostock v. Clayton County.1 This case involved the question of whether the Civil Rights Act of 1964 should be construed to prevent discrimination against homosexual and transgender people, and others with varying sexual orientation. The Court ruled that the Civil Rights Act does apply, in a landmark decision that has far-reaching implications for our churches, schools, and individual believers.

The background for the case
The decision actually involved three different cases, each with relatively simple facts. In each case, an employee was terminated from employment for being homosexual or transgender. In each case, the employee filed a claim that the termination violated his/her rights under the Civil Rights Act of 1964, which is commonly used as the basis for claims of discrimination, including claims of discrimination based on sex. Usually these claims involve women who claim that they were paid less or treated differently because of their gender. In these three cases, one federal circuit court had ruled that the Civil Rights Act of 1964 does not apply to cases of discrimination based on sexual orientation or gender identity, and only applies to discrimination based on biological sex. Two federal circuits had ruled that the 1964 Act does apply to claims based on sexual orientation or identity. When there is a disagreement between circuit courts on issues of law, the Supreme Court resolves the issue, and the Court was called on to settle the question in this case.

For many years the Supreme Court has been divided, with four liberal justices on one side of issues such as this and four conservative justices consistently on the other side. The ninth justice, Justice Anthony Kennedy, was usually the deciding vote, siding with either the liberal or conservative wings of the Court. However, Justice Kennedy recently retired and was replaced by Justice Brett Kavanaugh, who is considered conservative. This caused many to believe that the Court now had a solid five to four conservative majority. However, in the Bostock case, the Court ruled 6 to 3 in favor of applying the 1964 Civil Rights Act to cases involving claims of discrimination due to sexual identity or orientation. The opinion was penned by Justice Neal Gorsuch, a Trump appointee considered by many to be a conservative who follows the same line of legal thought as former Justice Antonin Scalia. Scalia was a solid conservative, and was a strict textualist, which is to say that he interpreted statutes as they were written, rather than reading into them what Congress might have meant by the words that they wrote. Gorsuch and the liberal wing of the Court were joined by Chief Justice John Roberts, who is also considered a conservative.

A textualist interpretation?
Justice Gorsuch purported to follow the strict textualist line of reasoning in interpreting the statute in this case. He stated:

This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives.
With this in mind, our task is clear. We must determine the ordinary public meaning of Title VII’s command that it is “unlawful…for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”2

Applying these principles to the cases at hand, Justice Gorsuch reasoned that 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. Justice Gorsuch’s reasoning is that if a transgender man is fired for dressing like a woman, but a woman is not fired for dressing like a woman, there is unlawful discrimination on the basis of sex.

Justice Samuel Alito filed a lengthy dissent, which was joined by Justice Clarence Thomas. Justice Gorsuch had claimed to be construing the strict language of the statute to avoid usurping the role of the legislature, but Justice Alito began his dissent with the statement “There is one word for what the Court has done today: legislation.”3 He noted that for the past 45 years, bills have repeatedly been introduced in Congress to add “sexual orientation” and “gender identity” as protected classes under the Civil Rights Act, but that such bills have failed.4 The implication, of course, is that if Congress had thought that “sex” in the original act included “sexual orientation” and “gender identity,” there would be no need to try to add those terms. Gorsuch responded in his majority opinion that it does not matter what the legislative history is if the statute is clear, and it clearly refers to differential treatment on the basis of sex.

Alito also attacked the notion that Gorsuch was providing a strict textualist interpretation as he had claimed. He noted that the majority opinion acknowledged that a statute should be interpreted “in accord with the ordinary public meaning of its terms at the time of its enactment,” and argued that the meaning of discrimination based on sex in 1964 would have been considered to be biological sex. He appended a copy of the definition of “sex” from the 1953 edition of Webster’s dictionary, which defined “sex” as one of the two divisions of organisms, either male or female. Justice Brent Kavanaugh also filed a separate dissenting opinion in which he attacked Gorsuch’s claim to textualism. He cited numerous examples from former Justice Scalia, noting that textualism gives words in statutes their “ordinary meaning,” not their “literal meaning.”5

Justice Alito noted the multitude of federal laws that prohibit actions based on sex, and the effect that the Court’s opinion could have on them, such as housing laws; laws effecting use of bathrooms, locker rooms, etc.; women’s sports; employment by religious organizations; healthcare; freedom of speech; and constitutional claims in which these rights are asserted. Justice Gorsuch dismissed such concerns, stating that only Title VII of the Civil Rights Act was before the Court in this case.6 Gorsuch also noted that Title VII itself included religious exemptions that were not asserted in this case.7 Finally, Gorsuch pointed out that with the Religious Freedom Restoration Act (RFRA),8 Congress went even further to protect religious freedoms than the exemptions in Title VII. Gorsuch noted that in at least one of the cases considered in the Bostock decision, the employers had claimed protection under the RFRA, but had not asserted those claims on appeal.9

Why analyze this decision?
We have spent a considerable amount of time in this article looking at the various positions asserted in the decision for two main reasons: 1) because of what those positions tell us about the status of the law and how the courts may rule on future cases; and 2) because those majority and dissenting opinions demonstrate the far-reaching effects that this decision will have on our everyday lives.

With regard to the first point, it is obvious that the conservative majority many had hoped for is far from reality. This is a good reminder to us once again that all things are in the hands of our heavenly Father, and all things unfold in accordance with His will. Man may think he has a “fix” that will improve this earthly life, but when the Father wills a different outcome, His will governs all. With regard to the actual makeup of the majority opinion, we do not know what motivated the individual justices. The opinion of Justice Gorsuch in particular is difficult to understand. Although he claims to be a strict textualist, and it could be argued that he felt bound to reach this conclusion by the text of the Title VII statute, the dissenting opinions of Alito and Kavanaugh demonstrate that the outcome of the majority opinion is not warranted by a true textualist interpretation.

Chief Justice John Roberts’ vote joining with the liberal wing is also somewhat puzzling, as he is also generally considered a conservative. Roberts has voted with the Court’s liberal wing on several notable occasions before, such as when the Court upheld the Affordable Care Act.10 Some have speculated that Roberts’ vote with the majority was a tactical decision. As chief justice, Roberts is responsible for assigning the writing of a decision. However, if Roberts was not part of the majority, that responsibility would probably have passed to Justice Ruth Bader Ginsberg, as the most senior associate judge on the majority side. If Roberts knew that the decision was going to come down in favor of applying Title VII to sexual orientation or identity claims, by siding with the majority he could assign the opinion to one of the more conservative justices, to limit the scope of the decision. All this, of course is mere speculation, but could explain Roberts’ position as well as the likelihood that he would support efforts to limit the effect of the decision in the future.

In Gorsuch’s opinion, he did make reference to both the religious exemptions of Title VII, and the Religious Freedom Restoration Act. This could mean that, while generally applying the Title VII provisions to claims of sexual orientation and identity claims, he would be willing to limit the effect of those provisions on religious organizations and individuals standing on religious grounds.

On the second point mentioned above, regarding the far-reaching effects of this decision, it is hard to fathom the impact that this decision will have on future decisions. In an appendix to his dissent, Justice Alito listed 168 different federal statutes that would be directly affected. It should be noted that roughly half of the states already had some state law protections against discrimination on the basis of sexual orientation and identity. However, changing the definition of “sex” in federal law will impact all states, and in connection with many areas of law that state law does not touch. There may be different impacts for religious organizations such as churches and schools than for individual businesses, as well as different defenses that can shield those organizations and businesses from liability. The Supreme Court is also scheduled to hear a number of cases in which they will consider application of the religious exemptions in cases similar to this.

In a future installment of this article, we will look at some of the areas of law impacted by this decision, the differences for religious organizations and individuals, and some general principles to keep in mind when limiting liability that could otherwise result from this momentous decision.

1 Bostock v. Clayton County, 590 U.S _____ (2020).
2 Bostock, majority opinion, at 4.
3 Bostock, Alito dissenting, at 1.
4 Alito, at 2.
5 Kavanaugh dissent, at 6.
6 Bostock, majority opinion, at 31.
7 Bostock, majority opinion, at 32.
8 42 U.S.C. § 2000bb through 42 U.S.C. § 2000bb-4.
9 Bostock, majority opinion, at 32. Often the failure to assert such a claim on appeal is not an oversight by a party, but rather a tactical maneuver to force the appellate court to rule on the merits of the main statute. In this case, the goal may have been to force the Supreme Court to rule on the applicability of Title VII of the 1964 Civil Rights Act rather than relying on RFRA to avoid ruling on that issue.
10 National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012).