Conservatives on the Supreme Court may punt on a long-awaited L.G.B.T.Q. civil rights issue. The stalling tactic will alternatively put pressure on Congress to legislate basic rights of many with alternative life styles.
Job discrimination against gay and transgender workers is technically legal in many places in the US. Several states have already addressed this issue ahead of federal law enactment. The question at the Supreme Court is whether Title VII of the Civil Rights Act applies to millions of lesbians, gays, bisexuals and transgender workers. Does it protect these groups from job discrimination based upon sexual orientation?
Former Justice Anthony Kennedy was a great supporter of gay and lesbian rights and wrote the majority opinions in all four of the court’s major gay rights decisions. His retirement will make this effort to liberally interpret Title VII “an uphill battle.”
Ironically Justice Gorsuch could be a supporter of a liberal interpretation as he is “an avowed believer in textualism, meaning that he considers the words Congress enacted rather than evidence drawn from other sources.” He indicated that Title VII may bar employment discrimination based upon sexual orientation and transgender status. But, he says it’s a close call. And he added that legislation by Congress to end the aforementioned discrimination may be a more appropriate way to end unfair practices, rather than action by the Court.
Specifically Title VII outlawed discrimination based upon race, religion, national origin and “sex.” “The question for the judges [is] how broadly to read that last term.” Does it apply to whether a person is male or female only, or does it also relate to a person’s sexual preferences. Clearly, Title VII prohibits job discriminating against women. But if a man is married to another man should a company be able to fire him? Surely not.
The Trump administration chimed in by indicating, “it was up to Congress and not the courts to change the law [as it is now being enforced].”
Everyone knows that passing the buck to Congress at this time in history will extend discriminatory practices indefinitely given the vitriol that exists between the political parties. Yet the opposition appears to be resigned to the fact that a basic civil right is being denied to individuals for an inappropriate reason.
The simple thing to do is have the Court broadly and liberally interpret the law now because it is what society demands, and not delay the affirmation of job quality for all. We cannot depend upon Congress to effectively do its job on this matter at this time.