News and Commentary

Supreme Court To Hear Huge Cases On Religious Liberty And LGBT

On Monday, the U.S. Supreme Court added three key cases to its docket for next term — all of them impacting the intersection of religious liberty and gay and transgender employment protection.

The Wall Street Journal reports:

The Supreme Court will hear three cases concerning whether gay and transgender people are protected from discrimination on the job, marking the first major LGBT rights issue to reach the court since its 2015 opinion legalizing same-sex marriage.

Lower courts have differed sharply on whether the 1964 Civil Rights Act, which prohibits sex discrimination, necessarily covers sexual orientation or gender identity. Congress, unlike some two dozen states, hasn’t explicitly added those classifications to federal antidiscrimination laws.

The court’s calendar all but ensures decisions will come in the late spring or early summer of 2020, injecting a significant social issue—and the court’s role in resolving it—into the presidential election season.

The cases will represent the first time that the Supreme Court has taken up a major gay rights case since the 2018 retirement of Justice Anthony Kennedy, who carefully cultivated a decades-long legacy as a champion for the gay rights agenda. All eyes will now be on Chief Justice John Roberts and Kennedy’s successor, Justice Brett Kavanaugh, who have together emerged as the Court’s new pivotal swing bloc.

Two of the new cases, which will be consolidated together for Supreme Court argument purposes, address the issue of whether “the prohibition in Title VII of the Civil Rights Act of 1964 … against employment discrimination ‘because of … sex‘ encompasses discrimination based on an individual’s sexual orientation” (emphasis added). The third case, which will be heard independently of the other two, addresses the issue of whether “Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under [1989 Supreme Court case of] Price Waterhouse v. Hopkins.”

The Title VII issues that the Supreme Court has now deemed fit to uniformly resolve have spent much time percolating through the lower federal courts. In February, a unanimous panel for the U.S. Court of Appeals for the Fifth Circuit affirmed a 1979 Fifth Circuit ruling that held that Title VII does not prohibit employment discrimination on the basis of sexual orientation (or transgender identity). But in a separate concurrence, Judge Jim Ho elaborated on why, as an original statutory matter, Title VII does not provide for such protections. The concurrence also carefully highlighted the broader societal stakes of the underlying legal dispute. (Full disclosure: I formerly served as a law clerk for Judge Ho.)

Ed Whelan summarized and excerpted the concurrence at National Review’s “Bench Memos” blog:


Judge Ho begins by presenting the “two competing schools of thought” on what Title VII’s ban on “discriminat[ion] because of sex” means. Under the anti-favoritism theory, Title VII “prohibits employers from favoring men over women, or vice versa.” Under the blindness theory, employers must be “entirely blind to a person’s sex.” Separate bathrooms by sex are permitted under the anti-favoritism theory but not under the blindness theory.


Although judges in other circuits are divided over their interpretation of Title VII, they are united as to the original public meaning of Title VII. No one seriously contends that, at the time of enactment, the public meaning and understanding of Title VII included sexual orientation or transgender discrimination. To the contrary, there is a judicial consensus that the public meaning of Title VII in 1964 did not include sexual orientation or transgender discrimination. …

The traditional understanding of Title VII is further bolstered by other established principles of statutory interpretation. As the Supreme Court has repeatedly observed, Congress “does not alter the fundamental details of a regulatory scheme in vague or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” The Court typically invokes the “elephants” canon when it is asked to construe an ambiguous statute to reach a matter of great policy consequence. …

The elephants canon easily applies here. No one could seriously dispute the importance of the issues presented in this case, as reflected by the amicus and en banc attention these issues have attracted in other circuits. What’s more, this case is about more than sexual orientation or transgender discrimination. If we accept the blindness theory of Title VII, what else are employers prohibited from doing? As I noted earlier, employers would also be forbidden from maintaining separate bathrooms and changing rooms for men and women—even though the purpose of separate bathrooms and changing rooms is not favoritism toward either sex, but respect for the privacy of employees and customers of both sexes. …

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