Law expert analyzes the impact of the landmark Supreme Court decision for gay and transgender rights in the workplace.
Five years ago, on June 26, 2020, the U.S. Supreme Court announced its landmark marriage equality decision, Obergefell v. Hodges. This decision signaled a changed constitutional landscape with respect to the right to marry, but it did not bring an end to other forms of discrimination that LGBTQ+ people experienced in some parts of the United States. For example, a person could exercise that fundamental right, marrying their same-sex partner on Sunday, but then be fired on Monday for exercising that very act. Recognizing this, the day after Obergefell, Evan Wolfson, founder of the Freedom to Marry project, published an op ed piece titled, “What’s Next for the Fight For Gay Equality?,” stating “now we must get back to work,” making a priority “securing protections from discriminations for gay, lesbian, bisexual and transgender Americans.”
Wolfson observed: “In too many parts of the country, people can still be fired, evicted, refused service or even humiliated at stores or restaurants because of their sexual orientation or gender identity — in other words, just for being who they are.”
On June 15, 2020, the Court issued another momentous decision for LGBTQ+ equality, Bostock v. Clayton County, which takes an important step toward the checkerboard nature of civil rights across the United States, in which nearly two dozen states protect against discrimination on the basis of sexual orientation or gender identity, but more do not. At least with respect to federal employment law, Bostock means that, no matter the state in which an employee resides, as Justice Gorsuch (for the 6–3 majority) wrote: “an employer who fires an individual merely for being gay or transgender defies the law.” That a conservative member of the Court was able to see so clearly that “sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids,” is encouraging.
So, too, it is important that Justice Gorsuch rejected the effort of the dissenters, particularly Justice Alito, to argue that this result was not correct because of the negative legal treatment — and societal disapproval — of gays and lesbians when Congress passed the Civil Rights Act. Surely, Congress could not have contemplated such “unexpected” results as applying it to gay or transgender employees! Gorsuch countered, however, that “Title VII’s prohibition of sex discrimination in employment is a major piece of federal civil rights legislation,” written in “starkly broad terms.” That certain applications were unexpected in 1964 is irrelevant. He offered sexual harassment and applying Title VII to male employees as two once resisted but now widely accepted examples. Importantly, Gorsuch explained: “applying protective laws to groups that were political unpopular at the time of the law’s passage” — such as gay, lesbian, or transgender employees — “often may be seen as unexpected.” However, to refuse enforcement for that reason would “tile the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms.”
In this reference to the promise of the benefit of the law, Justice Gorsuch brings to mind Justice Kennedy, author (until his retirement) of all the Court’s landmark LGBTQ+ rights decisions. In Obergefell, Kennedy began his majority opinion with these words: “The Constitution promises liberty to all within its reach,” and that the gay and lesbian persons before the Court sought to “find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.” Most pertinent to Justice Gorsuch’s observation about statutory interpretation, Justice Kennedy said the following about attempts to limit the fundamental right to marry to historical understandings of why may marry: “If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.”
While Bostock is a significant victory, it is important to recognize that the Court did not address the issue of how Title VII might conflict with employers’ claims of religious liberty, whether rooted in the First Amendment, Title VII’s “ministerial exception,” or the Religious Freedom Restoration Act. In one case consolidated with Bostock, EEOC v. R.G & G.R. Harris Funeral Homes, the funeral home director had raised — unsuccessfully — such religious liberty claims before the Sixth Circuit federal court of appeals, including that forcing him to allow Aimee Stephens to “present” as a woman at work would conflict with his sincere belief that the Bible teaches that a person’s sex is an “immutable God-given gift.” The funeral home, however, did not appeal the ruling against it on the religious liberty issue in its petition for review before the Supreme Court.
Thus, Justice Gorsuch concludes the majority opinion in Bostock by observing that “no religious liberty claim is before us,” and that how Title VII interacts with such religious liberty claims poses questions “for future cases.” In his lengthy dissent, Justice Alito identifies some of those questions. Both in Obergefell and in Masterpiece Cakeshop, the conservative members of the Supreme Court — including Justice Gorsuch, in Masterpiece — have expressed solicitude for the religious liberty claims of persons acting in the marketplace. Future cases will show how such solicitude applies in the workplace. In my view, the Sixth Circuit opinion in R.G. & G.R. Harris Funeral Homes provides a good template for how to resolve those claims, but I would not hazard a prediction that the Court will agree with me.