As noted in a prior post, the United States Court of Appeals for the Seventh Circuit in an en banc ruling held that the Civil Rights Act of 1964 barred employment discrimination against LGBT individuals. The court read "sex" to include "sexual orientation" and non-gender conforming behavior. The ruling conflicts with a decision handed down by the Eleventh Circuit and sets the stage for a case being appealed to the U. S. Supreme Court and makes the nomination of Judge Neil Gorsuch all the more threatening to LGBT Americans. In his opinion in the appeals court ruling in the infamous Hobby Lobby case, Gorsuch made it clear that he believes that Christian extremist religious beliefs outweigh the rights and health concerns of others. Moreover, like Antonin Scalia, Gorsuch claims to be a "textualist" and :originalist" which allows him(when convenient, of course) to ignore social change and modern scientific and medical knowledge. A piece in The Daily Beast looks at how Gorsuch's nomination is a threat to LGBT rights and lives. Here are excerpts:
This week’s appeals-court decision that sex discrimination includes sexual-orientation discrimination is a landmark case.
It also just raised the stakes of the nomination of Judge Neil Gorsuch to the Supreme Court. Because this is just the kind of case that shows how Gorsuch’s “textualism” dictates conservative social policies.
The question at the center of the case is relatively simple. Kim Hively was fired from her job at a community college when someone saw her kissing another woman, and reported it. If that was really the reason she was fired, was it against the law?
Survey after survey has revealed that most Americans think it is. But most Americans are wrong. The Civil Rights Act of 1964 covers racial and sex discrimination, but it’s never been expanded—despite many attempts—to include sexual orientation or gender identity. The laws in 29 states are similar [including Virginia].
Hively’s lawyers at Lambda Legal, the leading LGBT-focused activist law firm, argued that if you think about it, she was discriminated on the basis of sex. If a man were seen kissing a woman, he wouldn’t be fired. But because she’s a woman seen kissing a woman, she was.
That position has been rejected by two other appeals courts, but this week, by an 8-3 vote, the Seventh Circuit Court of Appeals agreed with it, writing “Hively represents the ultimate case of failure to conform to the female stereotype.”
Because of the circuit split, the Hively case, or one just like it, is almost certain to go to the Supreme Court—where, if all goes according to prediction, it will encounter Justice Neil Gorsuch and his philosophy that a judge’s job is to say “what the words on the page mean.”
That phrase sounds innocent enough, and Gorsuch repeated it over and over again during his confirmation hearing. But the Hively case shows why it’s a con. Is “sexual orientation” among the “words on the page” of the Civil Rights Act? No. Was Hively fired for being female? No. Therefore, according to the “textualists,” she loses.
Now let’s come back to Hively. We know that the “words on the page” are ambiguous; that’s why there’s a lawsuit. So how do we understand discrimination on the basis of sex? Hively was doing something that, if she were a man, would have been totally unobjectionable. But because she’s a woman, she gets fired. Isn’t that sex discrimination?
Moreover, Hively’s claim is based on actions, not identity. She’s not claiming that her sexual orientation got her fired; she’s claiming that certain acts in which she engaged did. That’s actually a crucial difference. Hively isn’t making her case as a lesbian; she’s making her case as a woman who did something that her boss thinks a woman shouldn’t do.
[R]easonable people can disagree about how to interpret the Civil Rights Act in this kind of case. But one thing is for sure: The “words on the page” are the beginning, not the end, of the inquiry. If the words on the page were so clear, there’d be no need for judges.
Hively being decided just as Gorsuch’s nomination is being debated highlights what’s at stake for the Supreme Court, and why the non-confirmation of Judge Merrick Garland is not water under the bridge. If Gorsuch is confirmed, the case will, like so many others, come down to Justice Kennedy deciding whether to side with the court’s four liberals or the court’s four conservatives.
And if the next justice to retire is one of those liberals, or Kennedy himself, cases like Hively are open and shut. That’s why, absent some kind of last-minute compromise, Democrats are going to the mat to block Gorsuch, no matter how nice of a guy he is.
To laypeople watching the hearings, Gorsuch’s aw-shucks manner and plain-spoken appeals to the “words on the page” seem like good old common sense. But they aren’t that at all—they’re an ideology that leads to very specific, very conservative results. And women like Kim Hively pay the price.
I take employment discrimination very personally. When I first came out as gay after being married to a woman and having three children, I was with a relatively prominent Norfolk law firm and making good money. While some of my partners were not thrilled with having a gay partner, nothing adverse happened to me. Later, that firm was basically acquired by a larger law firm based in the area and the powers that be at that firm did not want to have a gay partner in the firm out of deference for "the sensibilities of the firm's conservative clients." Naturally, when I was forced from the firm, things were worded differently, but when confronted by the attorney I had hired, the true cause was never denied. At the time this happened, I still had a child in college and a child still in high school and a family to support. Of course, no consideration was given to them or me the anti-gay bigots involved. All that mattered were the purported religious beliefs of unnamed clients. What was the impact on me? Financially, it devastating and ultimately I was forced to file Chapter 7 bankruptcy. At that time period in Hampton Roads, there were no "out" partners in any larger law firm - there still aren't any to my knowledge - and I was basically unemployable. Emotionally, things were just as brutal for me and my children. In fact, I engaged in two serious suicide attempts during the ongoing nightmare.
Judge Gorsuch can play his word games and textualism all he wants, but the bottom line is that he is a threat to real people and real families and real lives.