A Watershed Moment for Gay Rights

It was a six to three decision, with Chief Justice John Roberts and Justice Neil Gorsuch joining the courts for liberals in the majority. One of the biggest surprises was that the majority opinion was written by conservative Justice Gorsuch, although perhaps there was a hint during the oral arguments that he would interpret the words sex entitle seven to

cover sexual orientation and gender identity. Let's do truth, okay, wouldn't Wouldn't the employer maybe say it's because this was this person was a man who liked other men, and isn't that first part sex. My guest is Steve Sanders, professor at Indiana University's Moral School of Law. So Steve

explained why this is a landmark decision. It's landmark for a number of reasons to First of all, it's the first time the U. S. Supreme Court has delivered a major gay and lesbian and transgender rights decision that was based on the interpretation of a federal statute, something passed by Congress, as opposed to a constitutional decision. Constitutional language allows, you know, for broader discussions of concepts like dignity and

evolving social understandings. State story interpretation is more limited. Yet Justice Gorset found a way through his method of interpretation to say that in existing law dating back to n on sex to sscrimination also encompasses discrimination against gay's, lesbians, bisexuals, and transgender people. It's also landmark because this extends federal

law to protect employment. In all fifty states, there has been no federal law expressly addressing sexual orientation or transgender discrimination. Only twenty one states have such laws on the books, and so it's significant because it extends the reach of federal protections for gay's, lesbians, and transgender people in a

significant way. And finally, the third way in which it's landmark is the author, you know, a textualist Donald Trump appointee to the Supreme Court, who delivered an opinion that I think many people would not have expected. And if it doesn't, you know, scramble our ideas and preconceptions about what it means to be a democratically appointed justice versus a Republican appointed justice. At least it shows that those

debates can be limited and often constrained. Justice Course, It's said, only the written word is the law, and all persons are entitled to its benefit. Did he really stick to textualism in his opinion? Well, so this is a debate that I think will continue to rage in law reviews and scholarly discourse and so forth for a while. You know, what does it mean to do textualist analysis? Here's what

Justice Course has said. Justice Course had said, Congress in four issued a very broad mandate that employers may not discriminate because of sex. The critical assumption that he makes, or the central argument that he makes, is that when you are considering a person's sexual orientation or you're considering their gender identity, you are invariably thinking about their sex. And if you take act and against them the disadvantagism you fire them, you refuse to promote them, and so forth,

you were taking into account their sex. A simple example, you have an employee who's a man who wants to date a woman, find the employer has no problem with that. You have a female employee who wants to date a woman, and the employer does have a problem with that. The employer has taken account of the employee sex. The employer is basically saying, I believe that women should date men,

but that women should not date women. They are discriminating against the person based on what sex they belong to. And Similarly, if you discriminate against a person who now presents to the world as female, but whose birth certificate says they are male, and you take action against that person, yet you don't take action against a person who is male and whose birth certificate also says male, you were

taking into account their sex. That the critical assumption here is that the text of the statute says sex, and that when you discriminate against people because they're gay, lesbian, or transgender, as part of that decision, you are inevitably making some judgment about proper behavior for a member of their sex. Justice Samuel Alito's descent was stinging he said, the arrogance of Gorsuch's argument is breathtaking. What problem did

he have with the writing of gore such as opinion? Well, again, from a technical standpoint, I think part of it gets to what does it mean to be a textualist, And different academics and different justices may disagree on that. But what Justice Alito is saying is you can't think about the words sex in the language of the statute without also bearing in mind what that word meant to the

people who wrote it back in nineteen sixty four. And it's pretty hard to argue with the idea that in outlawing discrimination on the basis of sex, the Congress in nineteen sixty four would have imagined that they were also protecting gay people, lesbians, transgender people, and so forth. Just as gorsus response that no, you know, sex is sex and we have to interpret what it means today. To go back in time and say, well, Congress couldn't have

imagined that is not really textualism. It's more a form of originalism. It's like, what is the original intent of this law? Who was it intended to protect and why? So we're getting into the nitty gritty of some debates between originalism and textualism, and I think Justice Alito's perspective is more the originalist perspective. Secondly, I think, you know, a lot of Justice Alito's arguments boils down to, in a practical sense, come on, everybody here knows that this

is about people's sexual orientation and their gender identity. To say it's a matter of sex discrimination is a sort of formalism which is game playing with war words and semantics, but is failing to confront what the real issue is here. These are gay people, these are lesbians, these are transgender people. They believe they have been discriminated as such, not on

the basis of their sex. And finally, I think, you know, maybe just Alito just couldn't have imagined a decision like this from a Republican colleague, from someone who is known generally as a judicial conservative. So there may have been just a sort of sense of betrayal here that something just as Alito could not have imagined would happen. And I think you're right his descent was impassioned and outraged, and part of it is I think he sort of

felt betrayed. A lot of people are reading into the fact that Chief Justice John Roberts assigned the writing of this opinion to Gorsage. We all, so that's right. The Chief Justice, when he's in the majority, controls the assignment of the opinion. So let's assume for sake of argument.

Although we really don't know that Chief Justice Roberts, you know, voted on this side from the beginning, he could have assigned the opinion to, say Justice Ruth Bader Ginsburg, and I think we would have gotten the same result that a very different opinion this opinion from Justice Gore, such as a landmark decision for the treatment of LGBT people

in employment law. That is different from saying it's a sort of manifesto of LGBT equality or that it's a roadmap for the future of the LGBT rights legal movement. It doesn't stray beyond the narrow question of Title seven. I think we would have gotten much different sort of opinion with different words and also different music from one of the courts. More liberal justices say, if Justice Ginsberg

had written this opinion, she wouldn't have taken the textualist approach. Probably, So you know, there's some speculation the Chief Justice Roberts gave it to Justice Gorsege because he knew that the opinion would be yes, seismic in its immediate effect, but also more narrow and limited in the way it might be extended into other contexts. There's also some speculation that Justice Roberts may have flipped his vote, that he may

have been on the other side of the issue. But you know, couldn't write an opinion that could get Justice gorseuchs vote. And you know, those are things we'll just never know. Justice Gorsuch has gotten a lot of criticism from conservatives about this opinion. Are they reading too much into this decision, perhaps projecting that he'll side with the liberals in future cases, for example, abortion cases. Well, I I think I would actually frame it a bit differently.

I wouldn't say that this was necessarily an ideological deviation for Justice. Course. Once again, Justice Gorseuch has a sort of distinctive and pretty rigorous and doctrinaire actually approached to reading and interpreting both statutes and constitutional texts. That's this thing we've called to called textualism. Textualism doesn't guarantee conservative results or liberal results, although it often is associated with a more sort of conservative slow moving backward looking understanding

of the law. So no, I think Justice Corset would say, and I think he'd probably be right that he's being entirely principled. He was simply following where his method of reading a statute led him, and it led him to this result. By contrast, I am quite certain that his same method of reading text would lead him to the conclusion that roll versus way it was wrongly decided and to more quote unquote conservative outcomes in lots of other areas.

But the people who say they're disappointed in this, I think are missing the point of lifetime appointments for Supreme Court justices and federal judges, and that is we expect them to be independent. We expect them to apply sophisticated legal analysis and legal judgment and not be looking over their shoulder about the political consequences if their legal analysis and legal judgment leads them to a conclusion that may

with some people be unpopular. Now, Justice course, it's said that we don't preport to address bathrooms, locker rooms, or anything of that kind. So is this limited to employment situations to you know whether or not you can get fired, or is there any room with this decision for lower courts to expand it to other areas. It's certainly possible. I mean, it is limited to to Title seven, which

governs the conditions of employment. UM, So it's not about public accommodations, it's not about housing, it's not about education, that kind of thing. But some of the reasoning in the decision could be extended to those other areas to federal laws that govern for example, education, Title nine, housing, the Fair Housing Act. Those also uh forbid discrimination because

of or on the basis of sex. So it is not uncommon for federal courts to take certain language and the way it's been interpreted by the Supreme Court in one area of the law and to import it into other areas of the law. So this could potentially have wide ranging impacts. I think as for the issue of UM bathroom segregation and so forth, that's a related but the distinctive question, UM, you know, is it is it discriminating against a transgender person to say what bathroom they

must use? You may be in conflict with their sense of their own gender identity. That is not necessarily the same thing as saying you are taking an adverse employment action against them because of their sex. But you know, again, a sort of conservative approach to the law says, one case at a time, this case presents one question. These other questions will come to us possibly down the road, and on the basis of full briefing and argument, we will then figure out what the right result is in

those cases when they come to us. Some conservative Christian organizations are saying their concern that this decision will affect how they run their own institutions, many of which don't allow LGBT people to work there. Will it have an effect on those institutions. Well, if you're saying if by institutions you mean churches, or or or or organizations that

are directly controlled by a church. No, there is already something called the ministerial Exception to Title seven, which says, for UH people who are engaged in religious ministry, they have a First Amendment free exercise of religion right. And so that's why Title seven can't be used to force the Catholic Church to hire female priests. So so that is well established. Now there's another case before the Supreme Court this term that is grappling with how far that extends.

Who exactly counts as a religious minister and so forth. But now, if you're talking about a business that just happens to be owned by a person who has particular religious views, um, then this decision does apply to them until courts rule differently or find an exception for religious liberty. Um. There there is no exemption in Title seven for people

for business owners just based on their religious beliefs. Um. There is, however, a requirement, and this could be important that Title seven only applies to employers that have more than fifteen employees, and so truly small businesses with fewer than fifteen people will not be affected by this decision. Are we overestimating the impact of this decision for gay rights?

The decision will have a practical impact, and no doubt will arm some people who have been fired or mistreated in their jobs with legal tools they didn't previously have to go into the federal e e O C or to go to federal court to vindicate their rights. And so yes, and in that way it does have a practical importance. Um. But secondly, you know, perhaps more important

is the signaling effect of the law. This tells employers who might have been thinking they could get away with firing or refusing to hire somebody because of their sexual orientation that they can. So hopefully that has a prophylactic effect of avoiding discriminatory acts before they even occur. And I think third, a decision like this inevitably sends signals to the broader society and the broader culture about the place of gay and lesbian and now transgender people in

American society. Thanks Steve that, Steve Sanders of Indiana University's Moral School of Law. The Supreme corp has ruled that the eight billion dollar Atlantic Coast Pipeline can cross under the iconic Appalachian Trail, clearing a major legal obstacle that could have derailed the pipeline. The Justice is ruled seven to two that a lower court overstepped when it canceled a critical permit. Joining me is environmental law professor pet

Parento of the Vermont Law School. How big a win is this for energy companies fighting to expand pipelines and fossil fueled use. Well, I mean it's one step. It's not a big win. The Atlantic Coast Pipeline itself is facing four different lawsuits or legal claims against it under the Endangered Species Act. There's an environmental Justice claim against

one of the compressors that's needed. There's a NIPA Next Environmental Policy Act case, so there's a bunch of hurdles for this particular pipeline, but it certainly does eliminate what could have been a real obstacle if the Supreme Court had interpreted the Appalachian Trail to be solely within the jurisdiction of the Park Service. There's a law that basically since the Park Service, cannot grant a right of way or an easement across the trail, So it could have

stopped the pipeline for sure. But now that that hurdle has been cleared, there's still a long way to go for this pipeline and many others. The issue was, as you mentioned, the intersection of several federal agencies and the definition of land. Explain those issues and how the Court decided them. So it was the seven to two decisions, so that was pretty decisive, And what the Court basically said is that a trail is an easement. The Appalachian

Trail itself is not land. The trail is on land that's managed by the U. S. Forest Service, so it's federally owned land, and the Court sort of parsed all of these different statutes to say that the trail isn't land. You know, it's a right of way, it's an easement. It allows people to cross the land, but it's not

the land that out. You know. That's kind of a technical but sort of common way in which courts sometimes parse the language of statutes and justice so to Mayor in her descent said, I don't understand how a trail can't be land. I mean, you have to walk on the land and harder to use the trail. And in order for the Park Service to administer the trail, which it clearly has the authority to do, it needs to be able to control what's going on on the land.

But in any event, it's a classic kind of statutory interpretation where there's potentially conflicting statutes at work, certainly not seamlessly written so that they make clear sense. And the court just came down saying, in this particular case, we think the Forest Service is the right agency to grant

the right away. Justice Clarence Thomas wrote the majority opinion, and he said, quote, sometimes a complicated regulatory scheme may cause us to miss the forest for the trees, but at bottom, these cases boiled down to a simple proposition. A trail is a trail and land is land. Unwind that for me, Well, I mean he's trying to, you know, simplify the case, uh by saying these are two different things,

or at least legally there are two different things. A trail, you know, like I said, is it's a it's a right of way, it's a right of passage. Um, it's an easement. It's only the right to use, not occupy. He made that point. Land is something that has to be occupied possessed, whereas a trail is just something you use, um by permission. Um. And then so he said, it's not like land in that sense, it's just the right to cross the land. Sort of my orange the sense

that I think it's equally simple. Um. You know, there's a definition of um. There's another law that that says that this trail is part it's a unit of the National Park System, and the Act that governs the National Park System definds unit to mean any land on which the trail is located. So so Mayor did the same thing as Justice Thomas said. I think the I think the answer is straightforward here as well. A trailers land. It's it's a path worn in the land, so it's land.

That was the difference between the majority, which I said is seven members of the court agreed with Thomas or six agreed with Thomas. So you know it was not a close call. Frankly, it was. It was pretty decisive. Did they bring out the dictionary for this one? They

used to bring out the dictionary a lot. I haven't seen it this term, but especially I mean, yeah, that's a famous technical justice school of the textualists and Justice Corset's recently in the Title seven case, that was another situation where you were looking at plain meaning and so forth. But in the pipeline, Justice Thomas didn't think it was

necessary to to consult any particular dictionary. Dooke Energy said in a statement, Today's decision is an affirmation for the Atlantic Coast Pipeline and communities across our region that are depending on it for jobs, economic growth and clean energy. Is that clean energy for real? Now? Well clean has

to be put in air quotes. You might say relatively clean compared to coal perhaps, um, which I mean coal is is clearly from an environmental standpoint, in a public health standpoint, um one of the worst sources of energy on the planet, um in terms of day to day impacts on people, their health and the equality of life. I mean, coal plants are the worst for sure. So I guess you'd say that gas providing gas as an alternative to coals. If you look at it that way,

it's cleaner. It's not clean in the climate sense because it's a fossil fuel. I mean, gas is methane. Of natural gas is methane. So you can talk about this as a gas pipeline, or you could also say it's a methane pipeline. Um. And when we know from all the climate science that we're getting that we can't keep mining, developing, burning gas anymore than we could coal, we've got a completely transition away from fossil field. So in that sense,

gas pipelines are not clean. Their infrastructure for fuels that are driving u the climate emergency, as some people would call it. I want to ask you about another aspect of this. Natural Resources Defense Counsel attorney Jillian Giannetti said that this is an affront to environmental justice and that disproportionately we build infrastructure in poor communities and communities of color, and ask them to shoulder the burden. Do you see

that as a fact as well? Well, that specific references to the compressor station, and these compressor stations are like large buildings. These are major facilities, and they release all kinds of volatile or organic compounds which are pollutants of course, which caused terrible respiratory effects asthma and other respiratory problems. And for this pipeline, they have proposed to put this compressor station in a black community that is already living

with multiple other industrial facilities. It's a typical situation in America. It's all part of whether you call an implicit bias or outright racism, it's all part of an institutional system, including environmental law, including the laws that permit facilities like this that have disproportionate impact on communities of color, so

called frontline communities. So yeah, I mean she's right that, you know, the poorer communities, the communities of color, are the ones that gets saddled with these industrial facilities that nobody else wants in their backyard. To a large degree, is responsible for the fact that these communities are also more vulnerable to things like the COVID outbreak, you know, the Yale study that was issued recently found that black communities are suffering three point five times the rate of

COVID infections and death as white community. So it's not hypothetical, it's real, and our laws and our permitting processes are not taking those into account. And the fourth Circuit reversed the decision to put this particular compressor in this black community. Now it's temporary, it's another one of these remand to the agency decisions, but it does illustrate the problem. Does this decision have repercussions beyond this situation, you know, the

Forest Service versus the National Park Service. This particular decision, in this particular case, UM is specific to the fact that the Appalachian Trail was crossing the U. S. Forest Service land. There are something like fifty different pipeline crossings of the Appalachian Trail. You know, understand it's two thousand miles long, so um, but those are crossings that are on private land. So far, there aren't a whole lot

of pipeline cases involving crossings of several lands. Now, if you broaden the question to transmission lines, and if you look across the United States, that where the transmission lines that exist today and the ones that we're going to be needing in the future are gonna go. Then you start to see more conflicts between transmission lines and the national trail system, which is all through the United States.

And so it's gonna be interesting to see how that plays out going forward, because of course a lot of those transmission lines also have to be light it's been permitted um and whether or not there's there's going to be further litigation over who has the authority to approve those transmission lines when they cross trails that may be

on federal land. Those are questions down the road now, but this decision probably signals that trying to block either pipelines or transmission lines using this technique of saying well only the Park Service as the authority, that's probably not gonna work. This doesn't mean the developers can begin work

on the pipeline. What are some of the other hurdles that environmentalists are putting ahead of them, Well, this pipeline will also because this is a six mile The Atlantic Coast pipeline is six hundred miles long, so it needs wetlands permits under the Clean Water Act. From the core of Engineers. It needs the states through which the pipeline goes. They need to certify that any federal permit, like the Core of Engineers permit, is in full compliance with state

water quality laws and standards. Some states, New York, California, Oregon, Washington have been using that clean Water authority to block pipelines and other fossil fuel infrastructure coal terminals, for example, in the state of Washington. That's a big controversy. The Trump administration is proposing to limit the authority of states to do that to block these kinds of projects citing

water quality concerns. There's endangered species impacts in the Atlantic Coast pipeline and other pipelines like Keystone XL and that implicates the Federal Endangered Species Act, and that requires both, you know, a biological opinion that says that the pipeline will not jeopardize any of these species, but also requires what's called an incidental take permit to allow a pipeline that might have some impact on the species even though

it doesn't jeopard guys them. So lots of federal laws involved in these cases, lots of litigation over how those federal laws are being implemented. And you know, we're still quite a ways from seeing any final resolution of a number of these cases. So now I want to turn to another pipeline issue. The Trump administration is calling on the Supreme Court to freeze a Keystone Excel ruling that

has stunted the permitting for oil and gas pipelines. Tell us what the Trump administration wants here and why they're involved. So this was a decision by Judge Morris in Montana that overturned what's called a nationwide permit for pipeline construction. And the Corps of Engineers has adopted these nationwide permits, this one is called number twelve, to facilitate the review and permitting of these law long linear pipeline type projects.

And um, it's a very truncated kind of process of evaluation. They don't do an environmental impact statement. These permits are actually grants of authority. So long as you comply with the conditions that have been published for these permits, you don't even have to go through an individual permit process. So it's a it's a very quick way of getting approval to lay down these pipelines. Judge Morris said, yeah,

but when you adopted this nationwide permit. You didn't consult with the Fish and Wildlife Service on all the impacts that you're going to have on endangered species as you are building the Keystone pipeline and other pipelines. And so he overturned the firm. He said it's illegal. And when he did that, he said, because the permits illegal, I'm going to enjoin. Initially, he said, this all the construction in the country under this aationwide permit, none, none of

its legal. The Corps of Engineers went back into court and asked him to modify it to limit it to only major pipelines, because this permit covers lots of difference activity. And so he did do that, but he's still put in place an injunction against any pipeline construction in the country that's relying on this nationwide permit. Twelve. That's the issue that the Trump administration has taken to the Supreme Court. Justice Kagan is assigned to oversee the Ninth Circuit any

of the cases that arise in the Ninth Circuit. Because Montana is in the Ninth Circuit, she's the justice that has the authority to issue what's called a stay of judge Morris's order if she feels it's necessary to do so.

She has now ordered the parties that is, the people opposing the pipeline and the government and the pipeline company to submit briefs by the end of the month, so she's put it on a very fast track to decide will she live Judge Morris's nationwide injunction or maybe modify it to say, well, I can leave it in place for the Keystone pipeline, but I'm not going to allow

it to block all other pipeline constructions. So we're gonna have to wait to see whether she wants to lift to stay in part or in hole, or leave it in place until the case has been argued in the Ninth Circuit and then ultimately, I suppose it will come back to the U. S. Supreme Court after that. Thanks for being on Bloomberg Law. Pat. That's Pat Parento of the Vermont Law School, and that's it for the position of Bloomberg Law. Remember to subscribe to our Bloomberg Law

podcast for the latest legal news. I'm June Blosso thanks for listening, and remember to change to the Bloomberg Law Show weeknights at TIMS at Easter right here on Bloomberg Radio