The U.S. Court of Appeals for the Second Circuit sitting en banc heard arguments
in Zarda v. Altitude Express and witnessed representatives of the Trump Department of Justice ("DOJ") argued that existing federal non-discrimination and equal rights laws do not extend to LGBT Americans. The motivation of Trump DOJ was simple: delivering on Trump's promises to Christofascists and "family values" hate groups that were made to ensure a pro-Trump turnout by evangelical Christians (using the term "Christian" very loosely if one believes in the Gospel message). In opposition was the U.S. Equal Employment Opportunity Commission ("EEOC") argued that the existing laws do apply to LGBT Americans. Based on the arguments and the Court's judges were less than receptive to the pro-discrimination arguments of the Donald Trump/Jeff Sessions minions. A piece in Slate.com looks at the 2nd Circuit's cool reception to the pro-hate and discrimination advocates. Here are highlights:
The U.S. Court of Appeals for the 2nd Circuit had a burning question for Donald Trump’s Department of Justice on Tuesday: What are you doing in our courthouse? By the end of the day, the answer still wasn’t clear. Something else was, though: The DOJ’s new anti-gay legal posture is not going to be received with open arms by the federal judiciary. The Justice Department’s latest wound was fully self-inflicted, as Tuesday’s arguments in Zarda v. Altitude Express should not have involved the DOJ in the first place. The case revolves around a question of statutory interpretation: whether Title VII of the Civil Rights Act of 1964 outlaws anti-gay workplace discrimination. Title VII bars employment discrimination “because of sex,” which many federal courts have interpreted to encompass sexual orientation discrimination. The 2nd Circuit is not yet one of them, and Chief Judge Robert Katzmann signaled recently that he would like to change that. So on Tuesday, all of the judges convened to consider joining the chorus of courts that believe Title VII already prohibits anti-gay discrimination in the workplace. The Equal Employment Opportunity Commission decided in 2015 that Title VII’s ban on sex discrimination does protect gay employees. Under President Barack Obama, the Justice Department took no position on this question. But in late July, Attorney General Jeff Sessions’ DOJ unexpectedly filed an amicus brief in Zarda arguing that Title VII does not protect gay people. The 2nd Circuit had not solicited its input, making the brief both puzzling and gratuitous. Its purpose only became apparent in September, when the DOJ filed a similarly uninvited brief asserting that bakers have a free speech right not to serve same-sex couples. Both anti-gay briefs were startlingly incoherent, seemingly the product of political pandering rather than legal reasoning. Arguments dragged on for nearly two hours, but EEOC attorney Jeremy D. Horowitz seized the upper hand early by capably explaining the agency’s three theories:
1. The “but-for” theoryThis argues that anti-gay discrimination qualifies as sex discrimination because, but for the gay person’s sex, he would not suffer discrimination. For instance, consider a homophobic employer who fires a male employee because he marries a man. But for that employee’s sex, he wouldn’t have been discriminated against and lost his job.
2. The sex stereotyping theoryIn 1989’s Price Waterhouse v. Hopkins, the Supreme Court ruled that sex stereotyping—punishing a worker for her failure to conform to gender norms—is a kind of sex discrimination. At first, courts only applied sex stereotyping to masculine women and feminine men. But as the 7th U.S. Circuit Court of Appeals explained in March, gay people are “the ultimate case of failure to conform” to sex stereotypes, since men and women are typically expected to date only individuals of the opposite sex.
3. The associational sex discrimination theoryThis holds that anti-gay bias constitutes sex discrimination much like anti-miscegenation laws constituted race discrimination. When states prohibited a white person from marrying a black person, they were committing discrimination because of race. It follows that when an employer punishes a gay person for associating with a same-sex partner, he has committed discrimination “because of sex.”
Horowitz made his case well, forcefully elucidating why “sexual orientation cannot be separated from sex.” That set the stage for Mooppan’s appearance, which, to put it mildly, did not go well at all. Chief Judge Katzmann immediately wanted to know: Why didn’t the DOJ defer to the EEOC on Title VII, as it normally does? Mooppan’s basic reply was that the Justice Department is the nation’s “largest employer”—meaning, in short, that it has an interest in retaining its capacity to fire gay people for being gay. Katzmann . . . . wanted to know what career attorneys at the DOJ’s civil rights division think about the agency’s position. But Mooppan wouldn’t answer: “That’s not appropriate for me to disclose,” he told the judge. Katzmann looked alarmed. Now a majority of the judges looked irritated. As a general rule, attorneys are supposed to answer questions posed by the court, not dodge them as though they’re taking the Fifth. It was a terrible start for Mooppan, and both Pooler and Katzmann looked genuinely perplexed that a DOJ attorney would show such blatant disrespect. Finally, Judge Dennis Jacobs broke the impasse: “I, for one, am prepared to proceed on the assumption that you’re here,” he said. Judge Jacobs asked Mooppan whether he can refute the EEOC’s associational discrimination theory and its parallel to interracial and interfaith marriage. “When you discriminate against interracial marriage,” Mooppan responded, you are promoting “racial superiority.” When you discriminate against interfaith marriage, you are promoting “religious superiority.” That makes the comparison to homosexuality moot. When arguments concluded, it seemed inevitable that the court would agree with the EEOC, reject the DOJ’s wackadoodle theories, and find that Title VII already proscribes anti-gay employment discrimination. After Tuesday’s performance, the Justice Department’s involvement in the case may have actually swung a judge or two away from its position; its flagrantly political intrusion seemed to irk even the Republican appointees. Anti-gay activists may have taken control of the DOJ—but they seem unlikely to persuade the 2nd Circuit that America’s gay employees don’t deserve civil rights.
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