When the U.S. Supreme Court legalized same-sex marriage in the landmark 2015 case, didn’t the court say the Constitution guaranteed everyone will be treated equally under the law regardless of sexual orientation? It was on TV and in all the papers. Surely, the Supreme Court hasn’t forgotten already.
So why was the court holding a hearing last week to decide whether a 1964 civil rights law prohibiting discrimination against anyone on the basis of sex would somehow permit employers to fire someone for being gay or transgender? If being gay or transgender isn’t based on sex, what in the world is it about? An open and shut case.
The biggest question before the court wasn’t really about discrimination. It’s obviously discrimination to fire someone based on sexual identity rather than job performance. The U.S. Equal Employment Opportunity Commission has protected gay and transgender individuals against job discrimination since 2015.
The cases before the court were particularly egregious. A county social worker ran a successful program for abused children for a decade until he was abruptly fired after joining a gay softball league. After years of therapy, a transgender plaintiff was told by her doctors to live for a year as a woman before transitioning through surgery. She was fired when she told her boss she would begin dressing in appropriate female business attire.
The real question before the current court is whether President Donald Trump’s two right-wing appointees will vote to reverse the continuing recognition by the court that LGBTQ Americans have the same legal rights as everyone else. Both Neil Gorsuch and Brett Kavanagh were law clerks for retired Justice Anthony Kennedy, the deciding vote who wrote many of the majority court decisions affirming LGBTQ rights including gay marriage.
Kavanaugh, who replaced Kennedy, asked only one question during the hearing, giving little indication how he was leaning. Gorsuch aggressively questioned an attorney for the transgender woman, asking whether the court should “take into consideration the massive social upheaval that would be entailed” in a decision providing job protections for gay and transgender employees. Gorsuch said “drastic” changes could include creation of gender-neutral bathrooms and abolition of dress codes. The baffled attorney simply replied there was no existing evidence of any such massive social upheaval ever occurring.
Indeed, Wisconsin experienced no such cataclysmic upheaval in 1982 when it became the first state in the nation under Gov. Lee Sherman Dreyfus, a Republican, to ban discrimination in employment and housing against gays and lesbians. Neither have any of the other 20 states and the District of Columbia that have since adopted similar laws outlawing discrimination based on sexual orientation.
The fantasy of the Supreme Court worrying about such “massive social upheaval” was especially bizarre coming from Gorsuch. Gorsuch just published a book, "A Republic, If You Can Keep It," arguing judges shouldn’t “do anything other than interpret statutes according to the ordinary meaning of their terms” and should never try to guess at legislative intent or produce particular outcomes.
Contrary to the right-wing political philosophy of “originalism” that the Supreme Court should return to the “original” intent of the language written by the founding fathers — you know, back in the good old days when women, African Americans and anyone who wasn’t a wealthy property owner had no rights at all in our democracy — the “ordinary meaning” of words in our statutes does change over time and become more inclusive.
My wife Kit and I have direct personal knowledge of how little the words of the Civil Rights Act of 1964 outlawing discrimination “based on race, color, religion, sex or national origin” actually meant until years later when courts began enforcing their “ordinary meaning.”
Kit and I graduated in journalism from Indiana University two years after the passage of that civil rights law. Despite the law, it was routine for newspaper editors conducting job interviews on campus during our senior year to specify they only wanted to interview male graduates. They usually said they didn’t have any openings in their “women’s sections,” devoted to fashions, cooking and other subjects of interest to women. Because Kit’s gender couldn’t be determined by her name, she signed up for those interviews anyway to tell editors they were overlooking outstanding female graduates capable of doing any job in their newsrooms.
It took decades for most newspapers to realize that. Many industries still have to be forced by the courts to cease brazenly discriminating against women and racial minorities. When I started to work for The Chicago Tribune that fall, Kit passed on working for another company that wanted her to agree not to become pregnant for three years.
That’s why we should only elect presidents who will appoint Supreme Court justices who will keep expanding equal rights and opportunities for everyone instead of moving our nation backward by defiling and dismantling democracy.
Joel McNally writes a regular column for The Capital Times.
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