Is it Legal to Fire Someone for Being Gay?

As long time readers know, I was forced from a law firm years ago for being gay. It has taken years to rebuild my finances, although I will never be in a position equivalent to where I would have been but for the anti-gay discrimination I experienced first hand. Now, the U.S. Supreme Court is about to begin its term on October 8, 2019 (the first Monday in October) by hearing arguments in three cases in which the Trump/Pence Department of Justice is arguing that it is perfectly fine and legal to fire individuals for being LGBT.  The Christofascists are cheering this disturbing DOJ position that some are above non-discrimination and public accommodation laws, while decent people ought to be wondering who will be next to be targeted by Christofascists after gays. Ultimately, these religious extremists want to be able to discriminate against anyone who threatens their ignorance based Bronze Age beliefs.  Allowing discrimination based on cherry picked bible passages puts many at risk going forward, including blacks.  Countless lives would be harmed based on nothing than what boils down to ignorance and superstition. A lengthy piece in the Washington Post looks at the cases and what is at stake.  Here are highlights:

Aimee Stephens never saw how her colleagues at work would react to her gender transition. The owner of the funeral home where she worked fired her first.

Gerald Bostock claims everything was fine in his job as a social worker in Georgia until he joined a gay softball league. Then came the pink slip.

For skydiving instructor Donald Zarda, the termination came after the routine way he joked with a woman when the two had been strapped together shoulder-to-shoulder and hip-to-hip for a tandem jump. Something along the lines of, “Don’t worry, I’m gay.”

The three present the Supreme Court with a blockbuster question at the start of its new term: Is it legal to fire someone for being gay or transgender?

The cases will be argued Tuesday.

This is one of the most consequential issues of the term, with more than 70 friend-of-the-court briefs dividing states, religious orders and members of Congress. More than 200 of the nation’s largest employers are supporting the workers.

[G]ay rights leaders say “married on Sunday, fired on Monday” is a possibility in more than half of the United States, where there is no specific protection for gay or transgender workers.The states that prohibit discrimination are not uniform — some protect only gender identity or transgender status, and some differentiate between public and private employment.

The issue for the court is the reach of Title VII of the Civil Rights Act of 1964, which, besides protecting against workplace discrimination because of race, also prohibits discrimination “because of sex.”

For 50 years, courts read that to mean only that women could not be treated worse than men, and vice versa, not that discrimination on the basis of sex included LGBTQ individuals. The Trump administration says that is what the Supreme Court should find as well.

That puts the Trump administration at odds with the Equal Employment Opportunity Commission, which decided in 2015 that gay and transgender individuals were federally protected.

Treating a man who is attracted to men differently than a woman who is attracted to men is discrimination, the EEOC reasoned. . . . . Discrimination because of sexual orientation is the same thing, the EEOC said, because it relies on stereotypes about to whom men and women should be attracted.

The full U.S. Court of Appeals for the 2nd Circuit ruled for Zarda, and said its contrary past decisions on the issue were wrong.

Chief Judge Robert A. Katzmann wrote that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” (Zarda died in 2014, and his case is being advanced by his sister and partner.)

The U.S. Court of Appeals for the 6th Circuit came to a similar conclusion in Stephens’s case.

But in Bostock’s case, the U.S. Court of Appeals for the 11th Circuit went the other way, ruling for Clayton County, a suburb south of Atlanta, that Title VII did not protect on the basis of sexual orientation.

In previous rulings on gay rights, such as striking down a federal law that recognized only marriages between a man and a woman and state statutes that outlawed homosexual conduct, the Supreme Court relied on the Constitution.

These three cases concern the text of Title VII. No one argues that Congress in 1964 intended to protect LGBTQ individuals; homosexual conduct was illegal in the vast majority of the country. The solicitor general said that basic fact should decide the cases.

[T]he lawyers point to an unlikely ally: the late justice Antonin Scalia.  In a 1998 ruling in a case called Oncale v. Sundowner Offshore Services, Scalia wrote for the court that male-on-male sexual harassment was covered by Title VII even though it is not mentioned in the statute or envisioned by Congress.

“It is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed,” Scalia wrote, adding that same-sex harassment need not be “the principal evil Congress was concerned with.”

“We’re the textualists here,” said Ria Tabacco Mar, an attorney for the ACLU, which is representing the Zarda estate. “We’re the ones pointing to the words of the statute.”

But for the demands of Christofascists and the abhorrent and deceptively named Alliance Defending Freedom, these cases would never have reached the Supreme Court.  What we see is religion - which has caused so much death, destruction and human misery over the centuries - yet again seeking to inflict harm those who do not hold to Christofascist dogma.  The Court needs to reject their demands and make it clear that real or feigned religious belief does not elevate one above the law. Civil rights outweigh ignorance based religious dogma.