Supreme Court hears LGBTQ rights cases
NEW YORK - The U.S. Supreme Court on Tuesday heard its first major LGBTQ rights cases the court’s swing vote, Justice Anthony Kennedy, the author of the court’s gay rights decisions, retired.
And over two hours of oral arguments, the new conservative majority sent mixed messages over whether the federal ban on sex discrimination also protects gay and transgender employees.
Professor Suzanne Goldberg of Columbia Law School says the issue is a clear-cut example of nonpartisan precedent.
“For 30 years the Supreme Court has said employers cannot punish employees who don't match their views of masculinity and femininity,” Goldberg said.
The court’s four liberal members appeared to agree that Title VII of the landmark Civil Rights Act of 1964 protected the plaintiffs – a now-deceased skydiving instructor in Long Island and a child welfare coordinator in Georgia, both fired because they were gay; and funeral home worker in Michigan who lost her job after coming out as transgendered.
The five conservative justices weren't so convinced Title VII protected them.
Justice Samuel Alito, for example, warned of judicial overreach, asking one of the lawyers to consider the views of someone who thinks, "if the court takes this up and interprets this 1964 statute to prohibit discrimination based on sexual orientation, we will be acting exactly like a legislature."
Yet all eyes were on the newest justice, Brett Kavanaugh. The Trump appointee is expected to be more consistently conservative than his predecessor, Justice Kennedy. But Kavanaugh didn't tip his hand during the arguments, instead asking one cryptic question.
Instead, it was President Trump’s other appointee, Justice Neil Gorsuch, who seemed to sympathize with both sides.
A ruling for the plaintiffs would extend Title VII’s protections nationwide for LGBTQ workers. A ruling for the employers would leave such employees unprotected under federal law, though more than 20 states, including New York, have their own laws banning discrimination on the basis of sexual orientation and gender identity.
But Professor Goldberg said that would not be a satisfactory state of affairs.
“Fewer than half of the states in the United States have these kinds of protections, so an employee can go in and out of being protected against discrimination merely because of where they live and where they happen to be sent on an assignment,” Goldberg said.
The Democratic-controlled House of Representatives has passed the Equality Act, which explicitly bans anti-LGBTQ workplace discrimination. The Republican-controlled Senate did not bring it up for a vote.
The court is expected to decide the cases argued today by the end of June.