2nd Circuit: Title VII of the Civil Rights Act of 1964 Applies to Gays

As numerous posts on this blog have noted, the Trump/Pence regime has been going to great lengths to roll back LGBT rights and to undo LGBT friendly regulations from the Obama administration.  Part of this anti-gay animus motivated agenda has been to have the U.S. Justice Department under Attorney General Jeff Sessions - who has a decades long history of being an enemy of LGBT individuals - to intervene in cases in which the U.S. Government is not even a party. Today, this ploy backfired mightily when the U.S. Court of Appeals for the 2nd Circuit sitting en banc ruled that Title VII of the Civil Rights Act of 1964 applies to LGBT individuals and bars anti-LGBT discrimination.   The ruling is a major defeat for the Trump/Pence regime which only the U.S. Supreme Court, were it so inclined, could overturn.  BuzzFeed looks at this welcomed ruling and slap in the face to the always disingenuous Sessions.  Here are excerpts:

A federal appeals court on Monday ruled that a 1964 civil rights law bans anti-gay workplace discrimination. The decision rebukes the Trump administration — which had argued against a gay worker in the case — and hands progressives a win in their strategy to protect LGBT employees with a drumbeat of lawsuits.

The dispute hinges on whether Title VII of the Civil Rights Act of 1964, which bans discrimination on the basis of sex, also bans workplace discrimination due to sexual orientation.

The Court of Appeals for the 2nd Circuit ruled Monday, “We now hold that sexual orientation discrimination constitutes a form of discrimination ‘because of . . . sex,’ in violation of Title VII.” In doing so, the court overruled a lower court — and a precedent from two previous court cases — and remanded the case to be litigated in light of their reading of Title VII.

The decision holds national implications due to its high tier in the judicial system, and because it’s seen as a litmus test of the Trump administration’s ability — or inability — to curb LGBT rights through court activism. The Justice Department had injected itself into the case even though it wasn’t a party to the lawsuit and doesn’t normally involve itself in private employment disputes.

The case was heard in New York City by all 13 judges in the 2nd Circuit, known as an en banc hearing, which leaves the Supreme Court as the only avenue for a potential appeal.

The ruling comes soon after another major gay-rights ruling in 2017, thereby giving momentum to the argument that anti-gay discrimination is prohibited even without a federal law that explicitly says so.

[T]he court pointed out that anti-gay discrimination would not exist "but for" a person's sex. That is to say, gays, lesbians, and bisexuals would not experience this type of unequal treatment had they been born a different gender, or were attracted to a different sex.

"A woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women," the majority wrote in an opinion led by Judge Robert Katzmann. "We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination."

Zarda’s lawyers deployed an emerging legal argument that contends Title VII applies to gay workers.

That position has been adopted by the Equal Employment Opportunity Commission, a largely autonomous federal agency that handles civil rights disputes in the workplace and supported Zarda in court.

An EEOC lawyer told the judges at a September hearing in Manhattan, “Sex stereotyping says that if you are a man attracted to a man, or a woman attracted to a woman, you’re not behaving the way those genders are supposed to behave.”

But the Justice Department took opposite stance, thereby pitting the federal government against itself.

Under Sessions, the Justice Department has tried to roll back several LGBT gains, rescinding Obama-era policy that protects transgender students and reversing a policy that said Title VII protects transgender workers. Sessions also filed a brief at the Supreme Court in favor of a Christian baker who refused a wedding cake to a gay couple, and in Zarda’s case, argued Title VII also doesn’t encompass sexual orientation.

On Monday, the 2nd Circuit found "sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected."

2nd Circuit Not Receptive to Trump DOJ Anti-Gay Arguments

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 2^nd 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 2^nd 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 2^nd 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 7^th 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 2^nd Circuit that America’s gay employees don’t deserve civil rights.

Second Circuit Nixes TV Coverage of Arguments on LGBT Rights

The bigoted Jeff Sessions who opposes GBT protections

While the Trump fueled furor over black pro-athletes exercising their First Amendment right to freedom of speech, the U.S. Court of Appeals is about to hear arguments on another circumstance that shows the promise of America is not currently available to all.  Specifically, the Court will ultimately decide whether or not LGBT citizens are protected from discrimination under existing federal laws.  The case arises out of the firing of an employee due to his sexual orientation. Der Trumpenführer's Department of Justice has intervened in the case to argue against a finding in favor of LGBT employees.  On the opposing side of the case is the EEOC which argues that existing laws do provide non-discrimination protections. Trump, of course, is motivated by his promises to the leaders of many of the most vociferous anti-LGBT hate groups who rallied the modern day Pharisee evangelical followers to vote for Trump. Politico looks at the stakes at hand which one way or another will likely see the case go to the U.S. Supreme Court.  Here are excerpts:

Appeals court arguments on LGBT rights Tuesday will take place without video coverage after a judge objected to C-SPAN's request to televise the rare session, a court official said.

The full 13-judge bench of the New York-based 2nd Circuit U.S. Court of Appeals is set to hear an hour of oral arguments Tuesday afternoon on a case raising the issue of whether existing federal law prohibits discrimination against gays and lesbians.

The case, involving a deceased New York skydiving instructor who claimed he was fired from a skydiving company because he was gay, has drawn unusual attention because different parts of the federal government are taking conflicting positions.

Interest in the 2nd Circuit case has also been piqued by the rarity with which the court grants en banc review. . . . . The 2nd Circuit is considered the stingiest court when it comes to having the full bench rehear a case already decided by a three-judge panel.

The clerk added that audio of the argument will be made public after the session. However, figuring out which of the 13 judges is questioning a lawyer or engaging with a colleague can be challenging from audio alone.

In June, the Equal Employment Opportunity Commission weighed in for Zarda's estate, arguing that existing federal law against sex discrimination offers protection against being fired for being gay. In July, the Trump administration weighed in via the Justice Department, contending that Congress has had dozens of chances to make such protection explicit and has never done so.

For decades, courts have ruled that firing or discriminating against employees because they're gay or lesbian does not violate federal law.

However, the Supreme Court has never ruled on the issue and in recent years, some judges have shown a willingness to reconsider that stance.

In April, the full bench of the Chicago-based U.S. 7th Circuit Court of Appeals voted, 8-3, to overrule that court's prior precedents and hold that there are protections for LGBT status in federal law. Five of the judges who joined in the groundbreaking majority opinion were Republican appointees.

U. S. Supreme Court Fails to Identify Gay Marriage Case to Be Considered

There had been an expectation that the U.S. Supreme Court would identify today which, if any, of the gay marriage/DOMA appeals that have landed on its doorstep.  The expectation turned into additional waiting as the Court remained silent on these cases and those following the case will be waiting with baited breath to see if the Court will show its hand on Monday.   In some ways I can understand the Court's hesitation: no matter what it does, factions within America will be unhappy.  The Christofascists will rant against judicial tyranny if the Court upholds gay marriage and/or strikes down DOMA.  On a longer term, however, if the Court does not uphold a constitutional right to same sex marriage, they risk being viewed by history as being akin to the Justices who ruled against blacks in the infamous ruling in  Dred Scott v. Sandford, 60 U.S. 393 (1857), also known as the Dred Scott Decision.   For those who do not recall their American history, in the Dred Scott Decision, the Court held that the federal government had no power to regulate slavery in the territories, and that people of African descent (both slave and free) were not protected by the United States Constitution and were not U.S. citizens.   In short, with the younger generations being supportive of gay marriage  by significant majorities, it is virtually guaranteed that over time any Justice ruling against marriage equality will be viewed by history as a bigoted monster.  One has to wonder whether this is the type of legacy far right blow hards like Antonin Scalia to be how they are remembered by posterity.  A piece in SCOTUS Blog looks at this dilemma facing the justices.  Here are highlights:

These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.

I have never before seen cases that I believed would be discussed two hundred years from now. Bush v. Gore and Obamacare were relative pipsqueaks. The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound. So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.

The cases present a profound test of the Justices’ judgment. The plaintiffs’ claims are rooted in the fact that these laws rest on an irrational and invidious hatred, enshrined in law. On the other hand, that describes some moral judgments. The Constitution does not forbid every inequality, and the people must correct some injustices (even some grave ones) themselves, legislatively.

The striking feature of these cases – not present in any others I have ever seen – is that that they would have been decided by the Justices’ predecessors one way and would be decided by the Justices’ successors another way.

The painful but sometimes unspoken truth is that seminal Supreme Court rulings sometimes reflect the era in which they were decided. In 2012, it is ridiculous to believe that the government could ban inter-racial marriage. But that was the law in much of the country for most of its history. In fact, it was a serious argument, and there were a number of similar laws on the books, when the Court declared them unconstitutional in 1967 in Loving v. Virginia. Society moved over the course of our history, and so did the Court’s understanding of the Constitution.

[T]he arc of history tilts towards equality and justice, and our society is rapidly but unevenly coming to the judgment that same-sex marriage is just and right. The claims presented by this case would just as inevitably prevail (probably by a wide margin) in the Supreme Court twenty years from now. By then, it will be broadly (if not uniformly) accepted that discrimination against homosexuals related to marriage is invidious and irrational. Our attitudes are shifting that fast.

Given the inevitability of same-sex marriage, if the Court rules against those claiming a right to have such unions recognized, it will later be judged to be “on the wrong side of history.”.

But the verdict of history cannot decide the legal questions presented by these cases. The cases arrive today, in this moment, before our cultural transition has completed. In a sense, it is a shame that there is such pressure to hear the cases now; the judgment for the rest of the nation’s history would certainly favor these claims. But if they do decide to grant review, the Justices cannot merely choose to embrace the past or the future. They will have to make a judgment now.

One option that the Court could decide to pursue is to hear none of the cases.  This would by default restore same sex marriage to California via the 9th Circuit's ruling and and leave the 1st and 2nd Circuit rulings against DOMA standing, although this latter option would leave potential chaos on a number of issues impacted by DOMA.   I'm sure that perhaps four of the Justices may not care if they are viewed as horrible individuals by history.  The question becomes whether five Justices do want to be viewed as having been on the right side of history.