In a historic decision out of the Supreme Court last week, federal legislation that bans discrimination on the basis of sex is now expanded to provide employment discrimination protections for members of the LGBTQ+ community.
While many assumed that this was already the way of the world, 29 states did not have any legal protections for LGBTQ+ people. A Supreme Court decision in 2015 legalized same-sex marriage in every state, but in many states, someone could be legally married to their partner in the morning and fired from their job that afternoon on the basis of sexual orientation.
This decision was an unexpected one due to the ideological makeup of the current court. Over the past years, conservatives have fought hard to keep progressives off the bench. Mitch McConnell refused to hold a hearing for President Obama’s appointee of Merrick Garland in 2016, senators rewrote the rules to prevent a filibuster of Trump’s nomination of Neil Gorsuch, and Brett Kavanaugh was approved despite credible sexual assault allegations against him.
A progressive LGBTQ+ rights decision from this highly conservative court felt out of the blue for most court watchers. Not only was the decision passed with a 6-3 majority, but Justice Gorsuch himself writing the decision. As a Trump appointee and known conservative, Gorsuch’s decision was surprising, and the fact that he was the one to write the decision is even more unexpected. However, his vote could signal that the Court is not as ideologically dogmatic as liberals and progressives once feared.
Joining in the majority opinion were Justices Ginsburg, Sotomayor, Breyer, Kagan, and Roberts. Chief Justice Roberts is largely considered a swing vote and is often the lone conservative to join the liberal wing of the court.
The question of this case centered on Title VII of the Civil Rights Act of 1964, and whether discrimination “because of sex” extended to sexual orientation and gender identity. The Supreme Court ruling affirmed that it does. In his opinion, 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. It is impossible, to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Critics of this decision, and Justice Alito in his dissent, argue that when the Civil Rights Act was written in 1964, it was not meant to apply to LBGTQ+ persons. Therefore, Justices have acted as activists when they should be adhering to a strict interpretation of the law’s intent. In his dissent, Justice Alito writes: “There is only one word for what The Court has done today: legislation.”
This critique brings up an age-old argument of the role of the Supreme Court. Should the law be interpreted as it was written? Or should legal interpretations be sensitive to popular opinion and changes in the political climate?
Last week’s decision is among the most important in history for the Gay Rights Movement and the first federal decision to protect the rights of transgender people. However, questions still remain surrounding gay and trans rights in the military and in religious organizations. Both of these entities operate under separate legislation, and will most likely be the subject of further court deliberation in the coming years. Though the decision was a decided victory for LGBTQ+ rights, it is by no means a final battle.
What we want to know at Quibbl:
Will Trump have the oppertunity to appoint a third Justice to the Supreme Court? Vote here.
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