This is where I think the Founding Members made a mistake, albeit expected for their times. They assumed the legislative, judicial, and executive systems would balance each other out. But they omitted the direct voice of the people. Of course back then only a limited number of white men were deemed intelligent enough to determine the nation's course. During the last 3 years, I have often thought the nation would be better off if people had a chance to directly propose and pass laws and boot out incapable legislators, like the initiative/ referendum process in CA. Even the Fox crowd was receptive to Berne Sanders at the recent town hall. As others comment, the country is becoming more, not less, accepting of LGBTQ folks.
1
If today's court session on census citizenry question is any indication, the Court Majority of Evil has shed any pretense of objectivity and respect for the law and has become willfully partisan. The American Experiment is on life support, and the abject failings of all three branches of government is on us.
While the motivations behind many replies here are admirable, fueled by unfair treatment of individuals, the method under consideration (ie redefining “Sex”) is weak and potentially fraught with unintended future consequences.
Title VII prohibits discrimination based upon , among other things “Sex” and “Race”. There can be no serious doubt that when written “Sex” meant biological sex and “Race” meant racial genetics.
There have been no new biological sexes created since that time. Yet the current attempt to avoid the legislative process required to add “Sexual Orientation” as an additional protected category rests upon completely redefining the clearly understood word “Sex” within Title VII so as to now incorporate sexual orientation, because it has some relation to the dictionary word “sex”. But applying very similar logic, people who cannot run fast might just as nonsensically argue that they are a protected class because their slow speed is related to one dictionary definition of the word race.
When you attempt to grossly distort what is written in order to meet your immediate goals, no matter how admirable, you lose the ability to legitimately protest when others later similarly distort what is written so as to meet their desires, which may very well be at odds with yours.
If you want to add sexual orientation or transsexuality as protected groups, do it properly, through legislation, not through judicial shortcuts.
6
While the motivations behind many replies here are admirable, fueled by unfair treatment of individuals, the method under consideration (ie redefining “Sex”) is weak and potentially fraught with unintended future consequences.
Title VII prohibits discrimination based upon, among other things “Sex” and “Race”. There can be no serious dispute that when written “Sex” meant biological sex and “Race” meant racial genetics. Those definitions remain valid today
There have been no new biological sexes created since that time. The current attempt to avoid the legislative process required to add “Sexual Orientation” as an additional protected category rests upon completely distorting the historically unambiguous word “Sex” within Title VII so as to now incorporate sexual orientation, simply because it has some relation to the dictionary word “sex”. But applying very similar logic, people who cannot run fast might just as nonsensically argue that they are a protected class because their slow speed is related to one dictionary definition of the word race.
When you attempt to grossly distort what is written in order to meet your immediate goals, no matter how admirable, you lose the ability to legitimately protest when others later similarly distort what is written so as to meet their desires, which may very well be at odds with yours.
If you want to add sexual orientation or transsexuality as protected groups, do it properly, through legislation, not through judicial shortcuts.
4
If today's court session on census citizenry question is any indication, the Court Majority of Evil has shed any pretense of objectivity and respect for the law and has become willfully partisan. The American Experiment is on life support, and the abject failings of all three branches of government is on us.
Here we go again. Our country has a legislative branch, which could amend our civl rights statutes to ensure that LGBT status is protected under our anti-discrimination laws. But, just like with immigration, many Americans prefer to be ruled by judicial decree rather duly enacted laws. The logic of this confounds me, particularly given the violence it does to our governing institutions.
This logic has caused our Constitution -- once our basic societal agreement on the role and power of government -- to become an infinitely elastic document that means whatever a majority of the court says it means. It has turned our pending cases into disputes not about our laws but rather about social consequences for competing constituencies. And it has turned our process of selecting jurists into a shameful form of bloodsport.
I get it that a Supreme Court decree is easier to win than a well-crafted legislative solution. But why is this public policy abomination better than having Congress perform its assigned function under the Constitution?
In the song "Winter in America," Gil Scott Heron wrote: "the Constitution is a noble piece of paper. With free society it struggled and it died in vain. Now democracy is ragtime on the corner . . . hoping for some rain." So sad.
2
You state:
“...the Supreme Court agreed to address whether gay and transgender workers are covered” by Title VII
That is a deliberate distortion of the facts. Of course they are covered; just as short people, redheads and all Americans are. The actual question is whether discrimination against them solely due to their sexual orientation is prohibited. Answer: As with all other forms of discrimination similarly not specifically identified within the wording of Title VII (eg short or redhead), NO it is not illegal, no matter how deplorable. The grasping at straws attempt to argue that “sexual orientation” is a protected category under VII rests upon completely redefining “Sex” as/when written (ie biological sex) into a vague catchall for anything related to the words sex or sexuality. This would be a rewriting, not a clarification, of Title VII, and logically opens the door to other no-less-justified conclusions. For example, neither an admitted (non-criminal) pedophile nor an individual who dresses in a provocative risqué way could be prevented from being grade school teachers because their innate inclinations are sex related too.
Congress could add “sexual orientation” as an additional protected category within Title VII, by taking a specific conscious action, not by a judicial shortcut of attempting to completely distort the existing language. When you circumvent the legislative process for short-sighted gain you risk further (potentially highly undesirable) distortions.
8
There are important historical lessons here. When the Supreme Court decided Brown v. Board of Education, the decision that racial segregation was unlawful -- that court ruling was resisted. Twenty years later, implementation was still less than complete. It remains so today.
But when Congress considered Title VII, the inclusion of "sex" -- notice they didn't say "gender" -- it was added as a poison pill to scuttle passage of the law.
To great surprise, a majority accepted the dare and gender equality became the law.
Implementation was comparatively immediate. Courts had little to interpret (except perhaps the slapdash aspect of the language).
Social movements are much less discordant when legislation mandates it, then they are when a court orders it, often without logistical and peripheral considerations.
Here, the law was written first and the court ruling will bring the plain language full circle. But the originalists on the Court may well look to legislative intent, something they are loath to do in other circumstances.
As a sociological phenomenon, this is fascinating.
Our country was begun, in part, by 17th Century Puritan settlers seeking religious freedom who, once in the New World, discriminated against non-Christians and Christians of differing sects. The more enlightened, albeit imperfect, 18th Century founders of our country, notably James Madison and Thomas Jefferson, understood the importance of planning our form of government (the Constitution is the written plan) and writing laws that empowered citizens, not religious institutions, i.e. they purposefully established a secular government. But alas, it appears we've returned to the 17th Century and the Puritans amongst us are again chomping at the bit to discriminate.
Title VII's provisions make it illegal to discriminate in employment based on race, color, religion, national origin and sex. By logical extension and as determined by many federal court cases, to deprive someone of employment opportunity based on his/her sexual orientation is, on its face, discrimination based on the person's sex.
The overriding question is will the US Sup Ct return us to 17th Century sanctioned discrimination rooted in religion. To codify such blatant discrimination in this 21st Century is beyond appalling: It is outrageous, inexplicable, and portends our country's further devolving into Huxley's Brave New World dystopia.
40
@Bridget Thomas
If Congress doesn't like SCOTUS decisions, they can extend or roll back the law.
It's not up to the executive branch or SCOTUS to read new meaning into the law.
6
@ebmem
Right. And the SCOTUS said 2nd Amendment, that has "well regulated militia" in the first phrase, said that phrase was meaningless at the time the Founders put it in the Constitution.
And Money is Free Speech.
And Mexico will pay for the Wall.
In my view of the world, the Constitution is a piece of paper in the way of Conservative Monarchy.
7
@Bridget Thomas
".... 17th Century Puritan settlers seeking religious freedom who..."
This is the classic fallacy put out and taught in our revisionist history classes taught to grade school children.
None of the religious groups that settled the various colonies were seeking religious freedom, they were all seeking religious domination. Each group wanted to be able to discriminate against other groups and be the titular head of their colony and eventually their state.
What we inaccurately call the 1st Continental Congress was actually the 3rd attempt to create a nation. The other two attempts failed because each colony demanded their base religion become the national religion. The only solution was what has colloquially become stated as the "separation of Church and State".
6
Today's youth abhor discrimination against sexual orientation and LGBT. Hopefully the courts would take into consideration the prevailing culture and mores of society before taking away the rights of Gay people, who are often discriminated and face violence just because they are gay.
50
@Ben In the hands of the religious right, e.g., the extremist conservative wing of SCOTUS, the Constitution is viewed as a bulwark of just repression of the ungodly and the messy social liberty of the populace, and a protection of the libertinism of the private market, the wealthy and powerful. More than ironic, it's just typical human hypocrisy.
@Ben I hope that's NOT the justification. If it is, then we run the risk of conceding freedoms and protections to the whims of each generation and it may not be positive.
2
I'm going to enter the job market in about a decade and as a young LGBT person I'd like to be able to work without fear. This case is of the utmost importance to me. I face discrimination at school and from my family every day. I'd like to be able to make a living. Thanks
96
@Gee, I'm sorry your current situation is difficult. There are lots and lots of us out here who espouse love and caring first and foremost, and I hope you'll be able to find such a "family of choice" in your area. We are all in the family of humanity and are residents of Earth; the rest is details. Hopefully someday everyone will realize that!
5
@Gee All the best to you, Gee. Many of us are behind you and support you.
4
@Gee The wisdom and simple eloquence of fresh eyes and fresh and objective human yearning. Hold onto that. Do not go gently into that night of the jaded cynicism and corruption of your elders, those to whom you entrust leadership and care and who provide so little of them.
Considering that most (or at least many) Americans access healthcare via the workplace, it is unconscionable to put minorities at risk of losing their jobs and that healthcare access for non-workplace lifestyle issues dependent upon the mercy and degree.l of bias of employers.
Anyone's access to the workplace and healthcare should not be dependent on someone else's religious views.
77
@Andy: Seems to me that you're overlooking the act of simply purchasing an ObamaCare policy. Then one's health insurance isn't tied to employment.
5
@Chuck, except one would not be able to purchase an ObamaCare policy without a job. Nice try though.
4
It is hard to comprehend that in 2019 we are having this conversation. The society of today has regressed in such a way that it will use anything even religion to take away an individual's rights under the Constitution which is rooted in a democracy of equality for all under the law, and according to the moral law.
I have my concerns that the Thomas side of the court will pull Roberts toward an ever-growing theocratic ideology. That is wrong, so wrong. So once again we sit on pins and needles as we too often have done in recent times, and hope and pray that the vote of five will uphold all its people's human and God-given rights.
99
@Kathy Lollock
Liberals are using government to take away religious rights....not the other way around.
I have a right to discriminate. So do you.
4
@George Orwell
If you feel that way, why do you call yourself George Orwell, who could have written a novel condemning your thesis?
5
The role of the courts is to interpret the law made by legislators, not to make laws or to engage in social engineering.
The social engineering of changing the thousands of years old Judeo-Christian definition of marriage as between a man a woman to include same sex unions was has significantly helped to obscure the natural definitions of men and women
and unleash gender and social chaos.
Everyone should be protected from discrimination, including those - almost all men - accused of sexual harassment and abuse who have not been given an opportunity to defend themselves and who are sentenced and punished by summary mob judgement, ruining often long and distinguished careers, in a total disregard for the constitutionally protected American system of justice.
A bit of a stretch, Congress can always revisit the 1964 Civil Rights Act, but then again the way this Congress is tied up in investigation knots, that's unlikely to happen anytime soon.
They are American citizens and deserve the protection, but a reactionary vote against them would not be surprising. The people who support and are bringing this case to the Court should be ashamed of themselves.
1
Absolutely =they should be protected. I agree w/ Kathy Lollock.
Why is this a conversation in 2019? Roberts better man up!
1
Is this a trick question?
1
Trump's scotus picks may take us back to 1950 the good old days for old white straight men they ruled the country with an iron fist longed for by Trump and his ilk.
1
NO they will not
Whether you are gay, straight, trans, man, woman, she ape, vegan, the focus should be on whether or not you are actually good at your job. When you do your job, show up on time, never get called called into HR but the people around you gossip, can barely make it to work on time, and get promoted for doing as little as possible is the most infuriating part about the work force. If you have a job where they discriminate, just quit and get yourself a job that respects merit. The only way to fight this discrimination is to promote jobs that care about your work ethic and put out of business jobs that discriminate. I’ve quit plenty of jobs where I watched lazy workers that just wanted to gossip get promoted and my hard work was not respected. A job is a relationship and when a relationship is toxic, you ditch it! Just remember, it’s just a job.
This Editorial appears to engage in wishful thinking. This conservative court is far more likely to strictly construe the term "sex" in deciding the Harris case. This will settle the law unless and until the US Congress unites enough to pass superseding legislation. If and when it does, I would assume that Congress won't directly butt heads with the preceding Supreme Court decision. It will not try again to slip trans and sexual orientation rights into a settled protected category. It will have to establish two new discrete protected categories, and that is the better approach from the viewpoint of women concerned about protections that have been hard-won over the decades.
2
I have no Faith in the Supreme Court.
Even the name is Undemocratic.
Judge not...
Isn't the question, "Will Congress...?"
2
Will this come to be known as the L.G.B.T. century?
It feels that way.
1
Shout out to all of those who said Hillary and Trump were “the same” and didn’t vote or even pulled the level for Trump because it supposedly didn’t matter.
Adding to the frustration, I knew it then and it’s reaffirmed now that this was an absurd and willfully ignorant proposition.
Part of me is riven with sadness, but also resignation.
4
A core principle of today's Republican party is to gain the freedom to discriminate against people who differ from them in any way. Many conservative Christians tolerate an immoral fool at the head of our government primarily to be able to pack the Supreme Court and insure that this happens. For some unfathomable reason they feel that this is an extension of their religious beliefs.
In this country they are free to be as backward and vile as they wish, but they should not be able to use secular laws to enforce their personal religious concepts. For some reason we are repulsed by people who want to do this in the name of Islam but find it perfectly fine when it is done in the name of Christianity.
4
The Supremes have sentenced American women to death.
Do you really think that the New Improved trump court gives a hoot about gay minorities?
3
Cannot believe we are debating this question. Can't believe it had to go to SCOTUS. Only wealthy white men and their brainwashed Christian throng could possibly think it's okay to discriminate against someone because of their age, race, sex, gender or orientation. Wealthy white men. Open your eyes everyone. The world has a serious pathological "male" problem. America especially needs to get these pathological billionaire old white men out of our government and courts. These incestuous so-called billionaire class have creeped their way into power in our courts, banks, governments, news publications, corporations -- and they control our lives. That is where the collusion lives. I'm the white male billionaires. It's insane. One percent pathological billionaire men are destroying our lives and the world we inhabit.
2
Why are we saying only some people are people?
2
All the arguments do not differentiate between a natural gender and a gender acquired by artificial means, either a permanent or temporary change.
The mammalian primate species Homo sapiens Linnaeus 1758 has four natural genders: females, males, hermaphrodites, and asexuals.
If one's whimsy takes one be called a person of a different gender, should that one be protected "against discrimination"? Should homosexuals and lesbians be primary-school teachers? -- I am not sure of my answers to these questions.
Wait for legislation? In America? You must be joking!
If we waited for legislation to allow same-sex marriage it might have taken another century! The US Supreme Court authorized same-sex marriage in all 50 states in 2013 when even the bluest of states (California) had held a referendum that rejected it. (What's wrong with the people of America when even an ultra-conservative country like Ireland voted in favor of same-sex marriage by a large majority?!)
What's wrong with America? Ignorance? Bigotry? Slavery? Jim Crowe? Hatred? Cowboy Capitalism? And, "yes" Evangelicals are largely responsible for the social extremism. They masquerade as Christians -- they don't have a clue about true Christianity. They are extreme capitalists and right-wing bigots; not Christians. And they give a bad name to the word religion and true Christian believers.
Evangelicals actively pushed for the death penalty for gays in Uganda. They made it their global mission to enact such hateful legislation there! It's just a fact. So should we wait for legislation protecting gay people from being arbitrarily fired in the US? No!
Let's not wait for legislation in a country so full of hateful, right-wing bigots. Let the Supreme Court rule in favor of justice. Hopefully Illegitimate One, supported overwhelmingly by right-wing, extremist Evangelicals, hasn't already succeeded in making the Court into a fascist institution. We'll see soon enough!
3
In this day and age it is mystifying to see how protecting all people from discrimination is even an open question. But I guess in the Age of Trump anything is possible.
The short answer to the question of this headline, I'm afraid, is "no." I could be wrong. I've been surprised by the Court before, but I don't expect to be this time.
1
It will be a sad day for separation of power if the vote is down party lines.
We need a better way to nominate Supreme Court justices. We give way too much power to presidents and the senate has turned into a lap dog.
Regardless of your ancient biblical views, the LGBQT community should be free to live their lives without state sponsored discrimination.
1
The simple truth is that the Establishment Clause means nothing. When Justice Alito dissented in US v. Windsor his reasoning was that gay marriage rendered religious conservatives either bigots or superstitious fools.
Those who oppose equal protection and due process for LGBT people are universally religious conservatives. They are wed to the notion that they are entitled to "conscience" protections which means the right to refuse service or employment - "no cake for you!"
For much of her life my mother kept kosher. Yet she adored my boyfriend with all her heart. More importantly, she did not go running around yelling at everyone eating a ham sandwich.
3
How about older workers - anyone care about that? 20% of Americans have to work after age 65, because they have gotten used to the "three meal a day" thing - stopping work is not an option for them.
You could be Trans, Black, Hispanic, illegal - all of those things rolled into one; and in a wheel chair as well, and you would still be treated better than a worker in their mid seventies.
Older workers are assumed to be useless trash - unless they are a Supreme Court judge, a Congressman or Senator, in which case, young people are hired to, literally, open doors for them at their place of work.
Our Liberals seem to have developed prejudices of their own, concentrating their energies on a few "identity groups", while caring nothing about large segments of the general population.
That's my opinion.
5
Will the Supreme Court Protect Gay and Transgender Workers?
No.
As much as i will abhor such a decision a ruling by this Supreme Court rejecting that
civil rights laws do not protect transgender and gay employees may finally convince all those who sat out 2016 and the apathetic that Trump has to go. Perhaps after the 2020 election the new occupant will release the thousands od pages of documents from Kavanaughs tenure in the White House and we can determine if he perjured himself during his confirmation hearings.
Enough already!
The Supreme court has better things to rule on.
1
Rejects from England: We got the Puritans, Australia got the Convicts. We got a raw deal.
Seriously.
5
The majority of white male and female voters chose Trump - and still do.
He stands for racial intolerance, misogyny, nativism, xenophobia, anti LGBTQ, anti environment, and corruption.
He has entrenched the courts as conservative bastions that will reach into the next couple of generations.
Will the court rule against LGBTQ? Of course. That is what Trump nominated judges to do and presumably what white voters wanted.
Will people sit home in two years and watch Trump be re-elected?
A Court majority of extremist conservative Catholics, stacked by Leonard Leo? Hardly. And I'll be surprised if Barr doesn't push a repressive homophobic argument by the government. He's of the same ilk.
Among many conservatives, there is still a prevailing view that sexual orientation is a choice and as such, is not entitled to protection under the law. To these unenlightened people, my response is simple: If that were true, then who, in their right mind, would choose to be discriminated against?!
1
If a company wouldn't hire a man who's married to a man, but it would hire a woman who's married to a man, it treats people differently because of their sex.
Discrimination on the basis of sexual orientation is discrimination on the basis of sex.
1
I think it's a sure thing that the three stooges--Thomas, Alito, and Gorsuch--will vote against applying the law to gays, transgenders, etc. We don't know yet about the new guy. It'll probably come down to Roberts in a 5-4 decision (for or against). If anyone thinks Thomas will do the right thing, they have been asleep for the last couple of decades.
What are you talking about?they are already protected, you can’t deny service, medical treatment, jobs or anything to someone because of their sexual orientation, this is already been covered
2
Physicians already are all allowed to deny care based on sex orientation
It is the Supreme Court’s role to interpret the law as written by Congress.
In this case the text of the law is clear and unambiguous. Congress used the term “sex”, not sexual orientation or gender identity. The terms are not even remotely synonymous. While I generally believe those characteristics should also be protected, what I believe or what the justices believe about that question should be utterly irrelevant. It should be a 9-0 decision issued with a one sentence text affirming the plain language of the law. Any decision other than 9-0 only means that some members of the court think their opinion of what Congress should have written is more important than what the People’s representatives actually wrote.
Those justices who believe congress should remedy the exclusion are free to write a concurring opinion to say so but concur they must if they have any sense whatsoever of their role in our Constitutional system.
5
@Airman So if a past Court failed to strike down an unconstitutional law, should the present one affirm their neglect?
But discrimination on the basis of sexual orientation *is* discrimination on the basis of sex. It is treating a male employee with a wife differently from a female employee with a wife, for instance. The plain language of the statute requires the Court to find that discrimination on the basis of sexual orientation is illegal (and has been since the statute was enacted in the 1960s). This should be 9-0, but it won't be, because some of the Justices hate gay people.
1
@Rob
Now's the time for any family member, distant relative, friend, neighbor, former colleague, staff member, or acquaintance of one of the right-wing Justices to invite the guy to lunch, come out to him, and explain why Court-affirmed discrimination would not fly. Anyone?
If the purpose of the law is to treat all fairly, we should replace the Civil Rights Laws with a law that says all employees must be treated fairly. The very act of proving that one belongs to a protected class (gay, black, female, disabled, etc.) is discriminatory and unnecessary.
The judicial expansion of the law has left straight, able-bodied, white males as the "unprotected" and they have lost the most. At the State of the Union address the Democrats cheered President Trump when he announced that women obtained 57% of new jobs last year. What about the men who shared only 43% of the jobs? Does anyone think it is discrimination?
1
@Eugene Patrick Devany The LGBT community has been oppressed , and denied security in housing, jobs, and basic human rights for centuries. Straight, white males have not faced this discrimination. It is time for some parity so we can all live together as equal citizens.
3
What hate crime does the LBGT want to enforce? Statistics show that hate crime legislation is weaponized by those who insist that they are the victims of hate crime. A current example of this is Jussie Smollett. All legal citizens of the United States are adequately and equally defended by legislation which protects their common rights to be protected from illegal criminal activity what ever it may be. Enactment of hate crime legislation is deleterious to a free society and should be denounced as a weapon and not a legal recognition for protection for a unique groups activities. Studies show that hate crime laws only result in more hostility and especially for the innocent victims it is used against. If your group insist protection for norms that are outside of the communities environment then that group is the perpetrator and not the community.
@JLC, thanks for the screed. But try reading the article - this is about the application of the Civil Rights Act, not hate crime laws.
Why are we even waiting for the Supreme Court to decide whether Title VII prohibits sexual orientation discrimination? Regardless of how the Court may rule, there is no reason why pressure should not be placed on Congress now to immediately amend Title VII to explicitly make sexual gender discrimination unlawful, as it already is under a number of state statutes and local ordinances throughout the country. If there are those in Congress who oppose such an amendment they should be exposed now. What are we waiting for?
11
@Jay Orchard
That is the intent of HR5, the Equality Act. It will pass in the House but the Senate is unlikely to approve the measure. Even if the Senate were to send the bill to Trump, he is never going to sign it. He is too indebted to the religious right.
3
@dcaryhart
Thanks for that valuable information. The legislation should be publicized more.
1
@dcaryhart They are neither religious nor right.
It's not the Supreme Court's function to protect gay and transgender workers. It's role in these cases is to interpret the statue in question. It's Congress's function to draft a statute to provide those protections being sought. These cases will more likely than not turn upon the rules of statutory construction, and we expect to see a 5-4 vote kicking the matter back to Congress.
4
Pause for just a moment and consider the reality that this is a HUMAN rights issue.
Labels like heterosexual and homosexual and transgender are words that divide us just as strongly as male vs female and black vs white - the politics of division that's been practiced by the current executive branch of the US government.
Equal protection under the law for all. That's the humane approach.
25
Oh you think the current court will construe Title VII to cover sexual orientation and gender identity? That's cute. [Insert Gene Wilder/Willy Wonka meme here.] That would be the correct result since at it's heart, anti-LGBTQ animus is a response to people not complying with rigid gender roles.
But Congress was not thinking about LGBTQ people in 1964, and the conservative majority will find a way to swat aside the Sundowner case, which concerned same-sex sexual harassment. It will ultimately be up to Congress to fix the law, which means LGBTQ people will remain vulnerable in a majority of states for the foreseeable future.
5
As a transgender female American, I expect no respect nor equal rights from our current government or Supreme Court. I am not viewed as human or worthy of dignity by my fellow citizens.
1
here here, I'm trans too and feel the same, oppressed
The Editorial Board has missed the point yet again. Title VII is a statute passed by Congress. It prohibits discrimination based on immutable characteristics, not behaviors - sexual or otherwise. There is no basis to conclude that Congress in 1964 intended for Title VII to be stretched to protect sexual behavior.
Unless you can find a genetic marker for homosexuality or Congress amends the statute, the Supreme Court will likely reach the logical conclusion that homosexuals and transgender persons are not protected from an employer who simply disagrees with their behavior.
6
@Red
An employer who disagrees with their "behavior"? Replace that word with "existence" and you'll probably see the issue more clearly.
2
@Red, well if you want to go down the road of "behavior," Title VII also protects a person's free practice of religion, which is not an immutable characteristic and is, for all intents and purposes, a behavior.
2
What a sad commentary on the so-called “land of the free, home of the brave” that in 2019, some Americans continue to demand the right to discriminate against other Americans of whom they disapprove for whatever their personal reasons—and that the Supreme Court must be forced to decide which Americans are worthy of employment and which ones can simply be fired because their sexual orientation or gender identity conflicts with their employer’s personal beliefs and bigotries.
12
This decision is a no brainer. It’s a shame that basic human rights are held hostage to such mean-spirited political games.
8
This is a decision that is, of course, left to straight people.
4
@Grove, I suspect Justice Kagan would disagree!
My friend to post what you did imposes a belief that the decision making process is impacted by sexual orientation.
If that is true, we can and should discriminate against people based upon sexual orientation because sexual orientation, according to your proclamation, modifies and impacts reasoning.
Sexual orientation, race and gender matter not when making decisions. No one should think otherwise, unless you want lawful discrimination to return in full force.
We are all humans capable of intellectual processing and decision making without impact by sex, race or sexual orientation.
It is not the role of the Supreme Court to be "generous" but to interpret the law as the law exists. Those who want changes in the law need to go to Congress, which the Times blithely dismisses as not having the "last word." It is risible to believe that in 1964 members of Congress thought of "sex" as used in this law as anything else but men and women, and it is none of the Court's business to decide how Congress should have "evolved." It is precisely such judicial activism that, pace some of the commentators to this piece, makes the most persuasive case for a reelected President Trump to continue appointing judges who know they are judges, not surreptitious and unelected legislators.
4
It is ridiculous that Congress is leaving this important issue to the courts, when the purpose of the judicial system is to interpret and not make laws. Like the courts, I read Title VII and logically extend protections to sexual orientation. However, that is not what the law says.
Congress should save us all some time and update these laws to keep up with the times and not leave it to legal interpretation.
21
@John, this is not about "sexual orientation." Rather, it is about discrimination on the basis of gender, specifically, expected gender behavior.
For example, if a man marrying a man could be frowned upon and could result in job termination or denial of housing in at least 15 states, whereas a woman marrying a man would not be discriminated against and would not find herself in fear of losing her job or home. The behaviors are the same (marrying a man), but the man is singled out due to his sex. Therefore, this is a sex discrimination issue.
5
No big deal here: Congress should simply pass legislation to amend Title IX.
3
What's the law's definition of "sex"?
1
I don’t think the Koch Brothers care either way, so I’d say yes, the rights will be protected.
Let me take a crazy guess. Knowing nothing at all about the legal intricacies, never having read the relevant legislation, not being a constitutional scholar, I still feel pretty confident that I can predict the exact outcome of the complex legal arguments down to the point of knowing it will be a 5-4 vote, and knowing which 5 justices will form the majority opinion and which 4 will dissent.
The arguments themselves will surely be perceptive and insightful, the only tragedy is that all the justices will have made up their minds beforehand ...
7
This should be fixed with legislation in congress, not "legislating from the bench". Of course that would require compromise and most likely require that any changes to the law afford the same amount tolerance from liberals toward evangelicals that gays so rightly deserve from evangelicals.
3
@I want another option
Can you please explain how liberals are being intolerant of evangelicals? Last I checked, evangelicals are not being denied jobs, services, etc. on the basis of their religious beliefs.
In general, I wholeheartedly agree that legislation should be from congress and not from the bench. In this particular case, however, there is no need for new legislation; simply follow existing laws on non-discrimination.
8
The court, at least the court of 2018, was in a revisionist mood. Frankly, the greatest hope for a progressive ruling on this issue comes from Roberts Kavanaugh, who have shown a modicum greater deference to stare decisis. Thomas and Alito are surely against it from the outset. An alternative hope is that there are case-specific hangups that allow the court to make a decision without ruling on the broader questions of how to interpret "sex." See Masterpiece Cakes. Despite the ever greater politicization of SCOTUS, I have some hope after hearing Kavanaugh in oral arguments. He seems much more fair minded and inquisitive than Justice Gorsuch. First, the census question.
@Brendan, Kavanaugh had better be on his best behavior. He lied under oath during testimony for his appointment and should a Democratic-led congress emerge in 2020, he could be in big trouble.
The Supreme Court can tell us the interpreted intent of the law. Congress can change the law. As always neither can legislate morality.
1
I doubt that I will live to see the day when such an obscene question can still be considered valid to put forth to the Supreme Court. The idea that Gay and Transgender workers could still be subjected to discrimination and fired based on their orientation repulses me. The first day I was ever proud to be an American was the day I saw the White House bathed in the colors of the rainbow - the first day my FEELINGS as an American who was Gay were going to be respected, under law, by the United States and my federal rights passed along to my husband. Don't think I don't know how tenuous these rights which should have been mine at birth, still are in this country. Just read the headline, ladies and gentlemen, and tell me that I should be proud to be an American on April 22, 2019.
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In short, no. No, they will not. Elections have consequences we will face one of them here. 2016 was always more about the Supreme Court with their lifetime appointments than the President. Sadly he may be gone in 2 years, but this court will live on for decades.
3
@Vicki Ralls, but... but her emails!
1
For this court to explicitly permit workplace discrimination against LGBTQ people would be a shocking development at this point in our collective understanding of US civil rights and largely perceived as a profound betrayal of our civic well being. Roberts is no friend to the LGBTQ community, nonetheless, I think he understands what sort of harm the court could do to itself with regard to public perception if it hands down a decision that accommodates bigotry. The public backlash against the court would be severe. This decision hinges on whether Roberts, the swing vote, can check his own worst impulses.
3
Let the Justices insist sexual orientation is a "choice" and deny equal protection to LGBT citizens. Then, go after "religion" as a protected class, because religion is also a choice.
11
Freedom to practice religion is expressly protected in the text of the Constitution. Enshrined in the Bill of Rights, religious freedom is an enumerated right.
“Immutable characteristic” as a basis for a protected class was created by the Supreme Court in a decision. The terms protected and class appear neither in the Constitution nor in the Bill of Rights.
Facts matter.
@EWG Religion is not an immutable characteristic. The Founding Fathers argued that citizens should be free to believe in a religion (or not) and were arguably more concerned with protecting government and personal freedom from specific religions. Historically, in the context of human history, organized religion - have posed the greatest threat to human freedom.
When is bigotry ever justified ? The key word is "person". It doesn't reference race, gender, sexual orientation or choice. Even if you are a " textualist", as some of the Conservative Justices identify themselves, the word person has no modifier, and the meaning is clear. Any Justice who votes not to protect members of the LGBT community from gender discrimination is revealing themselves as a judicial bigot, no matter what disingenuous rationale or legalese they try to hide behind. Homophobia has no place on the Supreme Court.
14
It's against my religious beliefs for anyone to be discriminated against, at any time, and in any context.
And by anyone, I mean everyone.
Will my religious beliefs be upheld?
Or do only the religious beliefs of those who discriminate count?
10
IMO, this issue comes down to the question of "Is sexual orientation a choice?"
If it is a choice, then discrimination can be avoided. If it is not a choice, then discrimination cannot be avoided and protection needs to be afforded.
1
@SSS, it does not matter whether it is a choice or not. Individual freedom, including freedom of expression and equal protection under the law is fundamental here. As long as one is not causing harm to oneself or others, people should be free to live their personal truths in the United States of America, period.
@Ed
What is being contemplated is not "equal protection under the law" but rather "extraordinary protection under the law".
The case involves a guy who worked for a parachute company. He was assisting a woman with a jump. Because he had to hold onto her he tried to comfort by telling her he was gay. Then there was the religious baker who could not bring himself to bake a cake for a gay couple.
The Supreme Court finds strange cases to decide gay rights, unlike the cases used to decide women’s right. Certainly, there is a case where a gay worker was paid less than a straight worker.
4
So many of us, like myself, have family members we love who could be negatively effected by this decision.
Odds are that at least one Justice had a LBGT child.
3
Read the Preamble of the Constitution. The "Big Idea" of what the Founders actually wanted. Then look around and see how that goal matches what we have. "Justice for All"? No, only the rich and powerful. "Promote general welfare?" No, only for the rich and powerful. "Secure the blessings of Liberty to ourselves and our Posterity"? "Blessings" must mean incarceration of minorities. The results of the SCOTUS rulings are totally opposed to any these ideas. Real World results.
4
Luckily New York City & State have strong anti-discrimination laws so as a gay man in NYC my job will be safe as will my housing. (I hope)
I understand the differing arguments based on originalists and textualists. While it makes me angry that this is being debated in 2019, it brings to light incongruities in the past decision that need to be clarified by congress. But of course congress is weak and unable to legislate its way out of a paper bag so I hold out very little hope that this issue will ever be addressed.
8
It’s not up to the Supreme Court, it’s up to Congress. The law clearly does not protect gender or sexual orientation. It is very specific in what it does and does not protect. The fix is simple: legislation.
10
Would this serve only to protect the rights of people in terms of employment and housing? Or would it codify the notion that someone can declare themselves to be one sex or the other, despite biology that is contradictory?
5
The "biology" is not contradictory. Read the science. Transgender people do not "declare" themselves to be anything, they simply are.
"Will the Supreme Court Protect Gay and Transgender Workers?"
We have an extreme right-wing Supreme Court now that Trump was elected. It is more right-wing and at least as activist as the Court that rewrote the 2nd Amendment against precedent and by ignoring half the language of the amendment, decided money is speech, and recognized corporations as people with religious rights. Two of the Supreme Court Justices were hand picked by right-wing organizations, are more "conservative" than Scalia, and are beholding to Trump. We have a Justice Department that is run by a Trump loyalist, who will obviously go along with whatever Donnie wants him to.
What do you think the answer to the headline question is?
28
@jas2200 Sadly, you are 100% correct.
1
I have no animus or ill will towards anyone. States and localities should pass protections against discrimination that respect religious freedom (Utah's SB296 is a relevant model) while protecting LGBTQ persons from harm. I am deeply concerned that anti-discrimination laws that are intended as a shield will instead be used as a cudgel.
I fear that an expansion of Title VII (beyond the pale of what any legislator or justice would have imagined even 10 years ago...) will be motivated not by the Constitution, but instead the stalking horse of liberal activism in the judiciary, immortalized by Kennedy's words: "At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life."
I work in an overwhelmingly secular, liberal professional services industry. If my traditional religious views were to be made known in my workplace, I expect that it would lead to significant negative consequences and likely to my firing. I suspect many minorities have faced similar or worse pressures over the years.
I am not a victim. But for those who want to understand the psychology of the "other side" of these debates, here you go. For the sake of my family, I fear those that see it as a Good Thing if I were barred from public employment, blacklisted from professional licensure, and boycotted into unemployment because I believe that marriage is for one man and one woman. Can we live and let live?
12
@James
I don't know about the people in your workplace, but wonder if you are being overly fearful. I am pretty far to the left (aside from being gay). My next door neighbors and best friends here are fundamentalist Christians. When I met them, they definitely didn't believe in gay marriage. We haven't discussed the issue of marriage in many years so I don't know if they've changed their minds or not. But we have each other over for dinner, share garden work, shop for each other. And many of our other neighbors do the same--we are a very supportive little community here. If your community isn't willing to live and let live, maybe you need to move.
11
@James. Thank you for taking the time to respond to this. I feel as though you have been lead into a straw man fallacy- in that more rights for LGBTQ people will mean fewer rights for religious folks. You are not barred from employment/ blacklisted from professional licensure because of your religious beliefs. It's illegal to fire or discriminate against somebody for religious beliefs/ worship. Nobody is advocating for barring you from employment for that. What we ARE advocating for is that people are equally protected for their sexual orientation. Barring people who are in same-sex marriages from Federal employment/ housing is not "live and let live". It's using one's own beliefs about "correctness" to oppress and limit other people's life options. I hope that makes sense.
9
Your workplace is "overwhelmingly secular*? What does that mean? Free of religious bigotry?
Should we be fortunate enough to have a Democrat as our next President, he or she should do what Franklin Roosevelt intended, appoint more justices to the Supreme Court. This will help balance things out.
24
This is the most tired claim of 2018-2019. It would almost certainly be found unconstitutional, it would provoke retaliation, and it relies on a fascile (or nonexistent) understanding of the history of the Supreme Court. "Balance" is a term with no historical context and a banal view of politics. Liberals are perpetuating the same disdain for our institutions that Trump does when he tries to declare a national emergency, breaks trade agreements, and tries to pull out of treaties. The last thing Democrats need to do in 2020 is retaliate with the same petulance. We need to stabilize our countries institutions, address problems with our democracy, advance positive reform, and fight for the rights of the people.
3
With Thomas, Alito and the two addition to the SC by our foul-mouthed president (to say the least) and, of course, of the GOP enablers, we don't need any legal, intelligent discussions, we know how all these judges will vote.
19
I get that sex and gender are different things. It seems to me that if you are discriminating against a transgender person, you are discriminating against them based on their sex - not their gender - and thus this should already be prohibited under Title VII.
The way I look at it is: A restaurant hires men and women as waitstaff (and remember, the terms "men" and "women" refer to gender, not sex.) There's a dress code for all - black bottoms and white tops. The employer already tolerates variations in dress based on gender - as long as the bottom is black, some women will wear a skirt and some will wear pants; many women will wear makeup. This is all perfectly fine by the employer.
Say a prospective employee presents as a woman, is hired, and adheres to the dress code. She is later "discovered" by her employer to be of the male sex , and is then fired. Her sex, not her gender, was the precipitated for firing and is thus illegal under Tital VII.
18
I'm not completely sure how, or if, the Supreme Court will address sex versus gender. Especially given the plethora of gender variations in the contemporary lexicon, I really doubt that discrimination based on LGBTIAQ identities would be covered. Given the speed of innovation, a blanket covering of any identity based on a back-and-forth between sex and gender is extremely unlikely. The postmodern ouerve, which underpins many of these terms is highly suspect of the law and rigidity in all its forms. How do you work that into the law of the land? I don't think that an argument that all discrimination, based on the plethora of identities, somehow revolves around sex will succeed.
1
@GBR, in my simplistic view of the world, I consider gender to be what is between your ears and sex is what is (or is not) between your legs. In any event, in your example, the employee is clearly being fired due to what is between her legs (sex). It is a no-brainer that this falls within Title VII.
2
So the Justice department is arguing to the Supreme Court that their unanimous ruling was in error. If the court reverses itself on this issue in only 20 years in which societal support for gay rights has significantly grown, then it will cast significant doubt upon the court's independence.
22
@Gerard
SCOTUS ruled that harassment is illegal, not that there is a protected class for self-identified characteristics.
6
Actually the statute protects various "self-identified characteristics," religion being an obvious one. Some people even decide to change their religion.
What the Court held in 1998 was not simply that harassment is illegal. (It held that over a decade earlier in 1986.) Rather that decision, held that *same-sex* harassment could be harassment because of sex, regardless of the fact that Congress did not envision that particular consequence of the rule against sex discrimination.
Congress already passed a broad rule: sex cannot be a "factor" in employment decisions. If you're firing an employee who is attracted to men because he's a man rather than a woman, you're undeniably using his sex as a factor in your decision.
That's already prohibited by the statute. Conservatives are trying to get unelected judges to create an exception to that broad and unambiguous rule.
8
When one compares the relative standing of the middle class of 1980 and that of the middle class today the differences in the apparent financial security of them are significant.
Has this been a concerted effort to discomfit the middle class so that it had less time to pay attention to what has been going on? It might as well have been.
7
"So Congress may not have the last word on this matter."
Since it is a law passed by Congress, Congress does have the power now to have the last word, if it chooses to speak.
What was said in Congress in 55 years ago is not the last word. The last word has yet to be spoken, if Congress chooses to speak it.
So where is Congress on this? Individual Congress members have not said a word, and none have presented a bill for consideration, nor even held a hearing.
What Congress means should not be up to the Court. It is only when Congress is absent from duty that the Court must do it.
10
@Mark Thomason
The role of the Judicial Branch of the Government is to interpret the laws. That is cemented in its creation. The courts decide if laws are constitutional and the scope to which they apply, any claim to the contrary is a flat out lie.
So much of the republic is now in the hands of Roberts. It's basically all up to him if we continue as we have been for almost 243 years. We know 4 on the court don't care if we do.
12
@Matthew
4 on the Court are for Constitutional Conservative Monarchy. Nothing less will do. They just have to find the right words, which Corporate America is working on.
1
The contradictions of the Originalists don't surprise the informed observer. These are the judges who ruled that Hobby Lobby had the right to act pretty-much however they wanted because the company has constitutional rights just like an individual and it was up to the market to decide. On the other hand, when Pfizer shareholders insisted that the company stop selling Thiopentone to use in lethal-injection executions, the Originalists framed the company as anti-death penalty activists, and the free-market argument as nowhere to be found.
23
@PeteH
The Supreme Court did not order Pfizer to sell or distribute Thiopentone -- the ways of free market or opinions of anyone not-withstanding.
@PeteH
You are making a silly argument. The federal government did not force Pfizer to sell Thiopentone.
The federal government attempted to force Hobby Lobby to provide abortifacients to their employees free of charge.
The logical inconsistencies of the left are hard to follow: OK to kill the innocent, not OK to kill the guilty.
1
I very seriously doubt the word "protect" when placed in front of the words "rights of others" is in the vernacular for the conservatives who were selected for their penchant for "not" protecting the rights of others. If the conservatives fall to the occasion and vote their conscience, perhaps members of the LGBT community will wholly understand the Republican Party might take their votes, but they are not invited to the party afterward.
8
The Court “would be wise”. But we no longer have a court chosen for wisdom, with unanimous or at least >60 senate votes.
We have a court chosen for political purposes, with Senate rules even changed to force through the last one despite significant opposition.
43
@Lauren Noll:
[We have a court chosen for political purposes, with Senate rules even changed to force through the last one despite significant opposition.]
Kind of reminds one of Harry Reid's actions in 2011.
2
@Lauren Noll
It was logical for Democrat Senates to decline to confirm three Eisenhower SCOTUS appointments as well as Bork? Those were not political decisions?
It was a political decision for a Republican Senate to decline to confirm Garland, which would have locked in a hard left 5-2-2 majority instead of the 4-3-2 it was replacing. [Admit that Garland would have always voted with the four leftists. Before Scalia died, we had three justices who were contextualists who ruled on what the law said and two, Kennedy and Roberts who no one knew how they were going to rule until the decision was published.]
There was no one Hillary could have appointed who would have been more leftist than Garland.
1
@ebmem There are no leftists on the Supreme Court. There are four centrists, one conservative, and four right-wing extremists.
16
My friends tell me gender and sex are different. Thus, the law covers the latter and not the former, on its face. Unless there is unequivocal clarity of the intent to go further, the court should not substitute its judgment for the more democratically elected legislature’s.
18
@Anonie
With friends like these...
Of course gender and sex are different...
When was the last time you heard of someone having gender in an airplane lavatory...
Sex in the back of a car can be mind-bending – but not gender-bending...
Though it can be fender-bending if you didn’t park far enough off to the side of the road...
But what’s really bend-inducing here – and it shows I should follow my rule for reading NYT editorials in reverse paragraph order...
“...statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed...
Sounds more like guidance from Sergey Brin to Google staffers – for clarity, of which I’m not one – than from Antonin Scalia to the rest of us...
PS
And in this regard, when our court systems function at their most decent best, they look much more like AI than any of the jurists, scientists – or bots themselves – are wont to admit...
All three revere lifetime tenure every bit as much as they revere the pursuit of justice...
Further, I hear that SCOTUS is thinking of targeted ad placement on the left and right margins of their opinions...
Not really...
Or not...
PPS
You may want to consider renaming your burg to Brinville...
Brinburgh is taken...
“...A little town on the borders of Armagh, lying south of Dungannon about 6 miles...
The intent of the law’s framers is irrelevant. If an employer enforces a differing set of standards for men & women as far as their behavior and lifestyle are concerned, they have run afoul of Title VII of the Civil Rights Act.
5
@The Buddy - you misunderstand the Originalist interpretation of the constitution that the right-wing activists on the Court subscribe to. At the end of the 18th century, when the constitution was written, men and women were treated very differently, so the Originalist sees no conflict in ruling accordingly. As for LGBTQI people, they were effectively non-existent in the late 1700s, so they needn't be accommodated now, in any way. So decrees the Originalist judicial activist.
5
@PeteH
"As for LGBTQI people, they were effectively non-existent in the late 1700s,"
Sorry, but they existed, and probably in similar numbers as today. Perhaps the description of totally "non-visible" is more appropriate.
The Society of the late 1700s created a MUCH larger closet than that of the late 1900s and 2000s. No on dared put their head above the foxhole in those days.
5
@PeteH
You misunderstand the difference between originalists and textualists.
When the Constitution was written, the words in the Constitution had a certain meaning, and originalists interpret constitutional challenges in that context.
Textualists believe that when Congress writes a law the words they used had meaning and that judges should not reinterpret words to meet some desired change in the law. If Congress wants to extend the term "sex" to include gender, sexual preferences, what an individual would prefer his sex to be, or any other self-identified, unverifiable characteristic, Congress should pass such a law. Judges should not substitute their own magical thinking of what the legislature should or would have specified.
The current cases are no Constitutional challenges. What the founding fathers might have thought are irrelevant. The cases are challenges of how legislation of the 1960's should be evaluated.
It is not judicial activism to interpret the law as written and to require Congress to pass laws to change or to clarify what they meant. It is judicial activism when a judge or judges substitute their personal opinions for the law.
5