US Supreme Court Celebrates PRIDE




In a 6-3 decision, with Justices Gorsuch and Roberts joining the liberals, the Supreme Court finally crossed the line that Justice Kennedy had often approached but never quite touched: LGBT rights are now protected under Title 7 of the Civil Right Act.

The bad news is that this provides only statutory rather than Constitutional protection, and a future Congress could write it out of existence … unless, that is the Equal Rights Amendment were to pass.

Here’s a good report on what happened, how, and why: the basic idea is that if people of one sex or gender identity can be fired (etc.) for doing the same thing that people of a different sex can do — something like wearing a dress or kissing a woman — on account of their sex or identity, then they are being discriminated against on account of their sex.

Did Congress intend that result when it passed the Civil Right Act?  Almost surely not.  But a central tenet of one faction of conservative statutory interpretation  has been that it doesn’t matter what Congress “intended” —  and there’s much written over whether it even makes sense to say that the 535-person Congress ever “intends” anything at all — so we look instead to the words in the statute.

That’s the work of Justice Scalia, who would rail against the previously common practice of looking to legislative history to determine what a statute’s authors meant when enacting it.  (Liberal judges still do this —because while it may not be determinative, it’s still often informative.)

Scalia’s faint echo on the current Court, Justice Alito, raged that Scalia would never have let that happen.  And he’s probably right — Scalia, who also tried to save laws forbidding masturbation — would likely have found an unprincipled way around it.  (Alito did try to do this and Gorsuch called him on it.)

The alternative conservative view to Gorauch’s “textualist” viewpoint — in which a statute’s wording is (if sufficiently unambiguous) is determining — is “originalism,” now most famously championed by Justice Thomas, which tries to ascertain the intent of a writing (more for constitutional than statutory texts) based on the intent of the authors — who, amazingly, almost always seem to agree with Justice Thomas’s own views!  Nice job if you can get it, but this time he got outvoted.

So congratulations to everyone who is now officially protected from discrimination — and to everyone else who is a fan of human rights.  But remember not to be too grateful to Gorsuch — among other things, he still wants to take away your health care.

About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)