The LGBT community and its allies are still in celebration mode, and rightly so. On June 15, the U.S. Supreme Court ruled the 1964 Civil Rights Act doesn’t just protect employees from discrimination on the basis of race, color, religion, sex, or national origin. It also protects LGBT workers.
Although he was appointed by President Trump, Neil Gorsuch turned out to be the constitutionalist his advocates said he was. He joined the liberal wing of the court, along with the prudent Chief Justice John Roberts, in securing a solid 6-3 ruling. Gorsuch even wrote the majority opinion. Homing in on the prohibition of discrimination due to sex, Gorsuch wrote: “ It is impossible to discriminate against a person for being homosexual or transgender without discriminating… based on sex.” He added that if an employer fires a male employee "for no reason other than the fact that he is attracted to men,” but not a woman who is attracted to men, the termination was clearly based on sex.”
That could hardly be put more concisely, and not surprisingly, Roberts agreed. But he’s often sided with left-leaning justices when he can’t find a reason rooted in the Constitution to do otherwise. His familiarity with, and respect for, that sacred document is far more solid than that of the three justices who dissented: Clarence Thomas, Samuel Alito and Brett Kavanaugh.
Alito wrote the dissent, claiming the majority hoisted a “textualist flag” – whatever that means – and pretended to hew to the words in the law while updating it “to better reflect the current values of society.” Even if that assessment is accurate, some might ask, what’s wrong with that? Do Americans want a static document that relies on the whims of Congress for alteration, or would they prefer one that is stable, yet fluid? If they like the rigid option, then Bible believers shouldn’t be eating shellfish or wearing mixed fabrics, and women who break their marital vows should be stoned.
It may be telling that whereas Roberts and Gorsuch sailed through the confirmation process with relative ease, the three dissenters were raked over the coals: Thomas, with his sexually charged mistreatment of Anita Hill; Alito, with a tough but fair grilling that caused his wife to weep in the gallery; and Kavanaugh, with allegations of alcohol abuse and sexual harassment that had him exhibiting unseemly red-faced rage during hearings. These three men have sometimes let their bitterness over perceived mistreatment affect their objectivity, and in this case, it showed.
Gorsuch had done his research, however, pointing out that previous court decisions have banned discrimination against women who have children, and put the kibosh on all sexual harassment. He did acknowledge that questions of religious liberty could temper future cases when employers claim their religion forbids them to hire LGBT people. But that argument is wearing increasingly thin, and not just due to the warping of scriptural interpretation. Should society expect LGBT people to go on the dole, rather than be gainfully employed? And why is an employee’s sexual orientation relevant, as long as it doesn’t affect the quality of work?
No rancid tweets have emanated from Trump, and perhaps they won't; he said, "we live with the decision." The decision did hand the administration a major defeat – one it may not have expected, because in seating Gorsuch, Trump assured supporters future rulings would go his way. Or, did he mean something else? Despite his public persona, crafted to placate the most conservative wing of his party, Trump in the past has proffered a “live-and-let-live” attitude, and expressed no particular antipathy toward LGBT people. Funny how things change – at least, in public – when a man has his sights set on political office.
Whatever the motive, and whatever the aftermath, the ruling is a victory for all Americans of goodwill – and for the Constitution.
Compiled by the editorial board for Tahlequah Daily Press, a CNHI LLC publication.