The U.S. Supreme Court heard arguments Tuesday in a set of cases testing whether federal civil rights law bars businesses from firing people for being LGBTQ. Specifically, the question is whether employers are free to fire employees because they are gay or transgender.
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Mainstream and queer press outlets are full of stories detailing the legal dimensions of the cases and analyzing what the court is likely to decide next summer. Very few commentators are cutting deeply to explore the profound social and moral implications.
After a brief summary, I’m going to cut to that chase, then write about where we go from here — whatever the justices decide.
What the Court will decide
Three people’s jobs are at stake in three separate legal cases. Here’s a brief summary:
- In Altitude Express v. Zarda, a recreational skydiving company fired an instructor after a customer complained that the instructor disclosed that he was gay.
- In R.G. & G.R. Harris Funeral Homes v. EEOC and Aimee Stephens, a funeral home owner fired a transgender woman from her long-time job after she announced her gender transition.
- In Bostock v. Clayton County, a government agency fired a man from his job as a county child welfare services coordinator after they agency learned the man was gay.
In all three cases, the plaintiffs argue that their employers discriminated against them on the basis of sex, which is banned by Title VII of the Civil Rights Act of 1964. Separate appeals courts ruled (respectively) in favor of the fired employees in the first two cases, and against the employee in the third case. The Supreme Court has to step in and decide who’s right.
Legal opinion favors the fired employees
The Court’s four liberal justices made fairly convincing points during oral arguments on Tuesday, noting that all three plaintiffs were fired on “the basis of sex.” If the two men who were fired had been dating or married to women instead of dating or married to other men, they would still have their jobs. If the transgender woman had dressed and behaved in a manner her employer considered appropriate for her biological sex, then she would have kept her job.
Riffing on Gorsuch’s “social upheaval” comment, let’s take a look at what’s really going on at the heart of these three cases.
Sounds confusing? Here’s how Stanford law professor Pamela Karlan, representing Bostock, put it in orals Tuesday:
“Two employees who come in, both of whom tell you they married their partner, Bill, last weekend. When you fire the male employee who married Bill, and you give the female employee who married Bill a couple of days off so she can celebrate the joyous event, that’s discrimination because of sex.”
That argument is plain, clear, and compelling. Two appeals courts and 4 Justices accept that sex discrimination took place. Even Justice Neil Gorsuch, a potential swing voter along with Chief Justice John Roberts, said the text of the 1964 Civil Rights Act, which bars discrimination “because of sex,” or “on the basis of sex,” appears to favor the plaintiffs.
Worries about social upheaval
But writing in the New Yorker, non-binary author Masha Gessen notes that even with legal arguments seeming fairly cut and dry, the Justices and lawyers in the case couldn’t stop talking about bathrooms. Justice Gorsuch even wondered aloud whether the court should consider “the massive social upheaval” that could follow a ruling in favor of LGBTQ workers.
What the Court won’t decide
Whatever the the Justices decide in this case, no overarching Constitutional principles are at stake. This case does not turn on First Amendment religious liberty questions. It’s a fairly simple (though certainly vital) matter of the Justices deciding what a law means, and how much that law protects different classes of people.
If the Court rules against the fired employees, Congress could easily remedy the matter by explicitly adding sexual orientation and gender identity to the Civil Rights Act, as they’re already attempting to do with the proposed federal Equality Act. That won’t happen this year or next given the Republican majority in the Senate, so this case is practically very important for people all over the country, the majority of whom are not protected by state-level anti-discrimination law.
The moral and social implications of the case
Given that jobs and livelihoods are at stake for people all over the country, taking a deeper look at the CAUSES of Tuesday’s case seems important. I think some critical issues are being lost among the detailed (though very important) legal particulars.
Riffing on Gorsuch’s “social upheaval” comment, let’s take a look at what’s really going on at the heart of the three cases. Legalities and politics aside, it all boils down to something very simple. Christian business owners and a Christian-dominated county agency are asking the Supreme Court to confirm their right to fire LGBTQ people or to refuse to hire them based solely on gender identity or sexual orientation.
They aren’t asking for the right to take people’s jobs away because they’re passionate amateur legal scholars who disagree with mainstream legal thinking about Title VII. They aren’t patriots leaping to defend a certain school of jurisprudence.
They’re homophobes trying to impose their religious beliefs on the public
They’re asking for the right to discriminate against and harm their neighbors. And they might win that right. That’s a really sad statement about the state of our nation today and about our common humanity and moral values. But why bring up religion at all?
Religion drives homophobia
Research shows a strong correlation between being religious and being homophobic and transphobic. The more religious people are in terms of strength of faith and church attendance, the more likely they are to oppose LGBTQ rights. The more secular, the more likely to be accepting and affirming of LGBTQ people.
Religious motives drive legal attention
As Nina Totenberg reported for NPR Tuesday morning, these cases have attracted almost unprecedented legal attention, “with dozens of friend-of-the-court briefs on each side.” Practically all the briefs siding with the employers come from religiously affiliated groups, including groups recognized for their hate speech by the Southern Poverty Law Center.
The Trump administration, kowtowing as usual to the Evangelical Christian base it must court to win a second term, reversed the position of the Department of Justice to argue in favor of firing LGBTQ people merely for being LGBTQ.
On the other side of the moral coin, 206 major corporations that employ over 7 million workers submitted briefs in favor of protection for gay and trans employees.
Over 200 major companies sign Supreme Court brief in favor of LGBTQ workers
More than 200 major U.S. and international corporations signed an amicus brief submitted to the Supreme Court on…
Whatever the court decides, a battle for our national soul has begun
The question is simple but profound. Are we a nation that allows the majority to trample the rights of people who are different? Are we a people who allow religious belief to be wielded as a weapon against oppressed minorities? Are we a pluralistic, secular society or are we a society of warring factions of religious sects, each jealously struggling to wield the Law to force beliefs on people who don’t share them?
The Court can begin to answer those questions now, but however they decide, the struggle won’t be over.
Ironically, the US lags behind other developed nations in this respect. Many Americans have been astonished to learn that LGBTQ people enjoy less equality under the law here than people in the UK, Canada, Australia, the EU, or even in eastern European states like Croatia.
Where do we go from here?
Ultimately, the struggle to define national character is a political one. A large majority of Americans support full legal equality for LGBTQ people. But the political scales today are tilted in favor of minority rule. The Republican Party (with the Supreme Court’s cooperation) has rigged the system, suppressing minority votes and leveraging gerrymandering to win disproportionate numbers of seats in Congress and state legislatures. Donald Trump lost the popular vote but won the Electoral College vote for the very same reasons.
It’s time to take our country back!
It’s time for people of good will everywhere to stand up and be counted. We need to take to the streets when that’s appropriate, but more importantly we need to SURGE to the voting booths.
You know it’s wrong to fire people just for being gay or trans, right? You know that discriminating against minorities goes against the very grain of what it means to be a decent, patriotic American. You know that none of us are truly free until the least of us are.
You know that winning back our national soul will take work!
It’s time to ACT. It’s time to contribute to candidates who oppose Trump and his religious allies. It’s time to volunteer and organize. It’s time to fire up your neighbors. It’s time to harness optimism and lead a charge that will turn Trump out of the White House and throw his Republican allies out of the Senate.
Only then can we begin the hard work necessary to WIN this great moral battle.
Let’s get started today!
James Finn is a long-time LGBTQ activist, an alumnus of Act Up NYC, an essayist occasionally published in queer news outlets, and an “agented” novelist. Send questions, comments, and story ideas to firstname.lastname@example.org.