Gorsuch Would Likely Overrule LGBT Civil Rights Case

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.  

Neil Gorsuch's Hostile Record Towards LGBT People

Without exception, every one of Donald Trump's list of potential Supreme Court nominees had a record of hostility towards LGBT citizens.  Neil Gorsuch is no exception.  Worse yet, with his support of Hobby Lobby's ridiculous claim that for profit business corporations can hold religious beliefs, Gorsuch has signaled that he is all in favor of granting special rights to Christian extremists and that should the "First Amendment Defense Act" be enacted and come before the Supreme Court, that he would rule for special rights for right wing Christians and uphold a blanket licence to discriminate law such as that act.  Lambda Legal has taken the formal position of opposing Gorsuch and lays out an explanation of why it has done so.  Here are excerpts:

Following President Donald J. Trump’s nomination of Neil M. Gorsuch, Judge of the U.S. Court of Appeals for the 10th Circuit, to the U.S. Supreme Court today, Lambda Legal took the difficult step of formally opposing his nomination, citing his record of hostility towards LGBT people and other marginalized communities. This is the first time Lambda Legal has opposed a Supreme Court nomination before a confirmation hearing.

In opposing Judge Gorsuch’s nomination, Lambda Legal cited his anti-LGBT rulings as well as his record on critical issues like religious exemptions.

“Judge Gorsuch’s opinion in the 10th Circuit Hobby Lobby decision is disqualifying,” said Rachel B. Tiven, CEO of Lambda Legal. “The Hobby Lobby decision set a terrible and destructive standard for bosses being allowed to meddle in our sex lives and decide whether or not birth control is covered by the employer’s insurance plan. In Judge Gorsuch’s decision, he calls the inclusion of health coverage that includes birth control – ‘complicity…in the wrongdoing of others.’  Even the Supreme Court, affirming that case, acknowledged how dangerous this line of thinking is: it creates a nation in which some religions are obliged to follow the law and others are not.  Troublingly, Judge Gorsuch does not even see this as a problem.

“We absolutely must not confirm a Supreme Court nominee who has ruled that the religious beliefs of employers can trump the law. It is a short hop from birth control restrictions to restrictions on the intimate relationships and health care needs of LGBT people.

“Through his decisions, Judge Gorsuch has promoted a vision of a society where some religions prevail over others, and are invited to flout the law. Judge Gorsuch’s judicial record is hostile toward LGBT people and his nomination to the U.S. Supreme Court is unacceptable—we oppose.”

Lambda Legal also cited a troubling ruling from Gorsuch in a recent transgender rights case in Oklahoma.

Additionally, protections against employment discrimination affecting LGBT people are likely to come before the Court very soon, as cases Lambda Legal has filed on behalf of math teacher Kim Hively and security guard Jameka Evans—both fired for being lesbians—make their way through the federal court system.

“Judge Gorsuch may very well be the decisive vote in these cases and others, and his extreme record suggests he could roll back the tremendous progress our country has made towards recognizing the fundamental rights LGBT people and everyone living with HIV,” said Tiven. “While any nominee would be difficult to accept given that this is a seat stolen from a democratically-elected president, we believe that Judge Gorsuch is an especially dangerous jurist to place on the highest court in the land.”

Judge Gorsuch has supported religious exemptions from laws based on ‘complicity’—the wrongheaded idea that adhering to the law makes the objector complicit in the allegedly sinful conduct of others. He troublingly described the issue in his 10th Circuit Hobby Lobby opinion as follows: ‘All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others.’

Judge Gorsuch has expressed disapproval of civil rights impact litigation, writing in 2005 that “American liberals have become addicted to the courtroom … as the primary means of effecting their social agenda on everything from gay marriage” to other issues. It is telling that Judge Gorsuch saves his criticism for “American liberals,” even as the U.S. Supreme Court routinely has heard conservative challenges to constitutionally protected rights.  

One set of religious belief should never trump non-discrimination and other laws.  Yet, this is what Gorsuch's record shows he believes to be perfectly fine.  The perverse part of me longs for the day when Christians are a minority in America and when perhaps they will have to face the legal discrimination that they have dished out to others for so long.  That would be divine justice.