Justices Appear Divided in Gay Rights Cases

of millions of people. Joining me as constitutional law experts, Stephen Vladdock, a professor at the University of Texas Law School, Steve these were three separate cases, but with one legal issue under Title seven. All three cases revolve around Title seven of the Civil Rights Act of nineteen sixty four, really one of the most important pieces of legislation commerce has ever enacted, that is, I think most similiar to us as the central employment discrimination law in the country.

Entitle seven basically prohibits most employers, basically every business with more than you know, a small number of employees, from discriminating against their employees on the basis of, among other things, sex. We've understood for as long as Title seven has been on the books that sex means you can't fire someone because they're a woman, or even because they're a man. The question in all three of these cases is does that also mean you can't fire someone because they are

of a particular sexual orientation? Does that mean you can't fire someone because they identify as a particular transgender status, that they have a gender identity that might differ from what you perceive their biological sex to be. And so basically it's all about the meaning of sex. I understood that the plaintiffs part of their argument was appealing to the text of the statute in order to get some of the textualists on the court on their side. Definitely right.

So I think one of the things that's really interesting about this case is that in a world in which we were all just pure formal sextualists, the law would actually seem to be pretty favorably on the side of the employees of the challengers here, of those who are arguing the Title seven should extend a discrimination on the

basis of sexual orientation or transgender status. I think the problem that arose and that we saw from the oral argument on Tuesday morning, is that the justices, I think are not necessarily quite the fervent committed textualists that they always put themselves out to be. Let's explain it a little bit, because so Justice Scalia was known as a textualist. He was the sort of almost a leader, the father of the movement, and Justice cour Sauch is supposed to

be one of those who follow Scalia. Yeah, I mean, I think the idea behind textualism and the animated principle is that when the words of a statute are clear, there's just nothing appropriate in looking behind those words. Basically that the words should be the first place the courts look, and if the words are clear, to be the last

place they look. And you know, I think what the plaintifts are arguing in these cases is that if you look at it through that lens, it's pretty obvious that discriminated on the basis of sex um means discriminated on the basis of anything have him to do with your sexual identity, with your biological sex, your sexual orientation, your transgender status, and so the that's why they think that this case could and should be decided slewly on the basis of text at least based on the question, and

I think or arguments on Tuesday. You know, some of the more conservative justices seem to have real concerns about that. And I thinks the larger point their june is that, you know, for all the talk about textualism, I think justices tend to be um, for lack of a better word, not entirely consistent about when they are faithful to that principle above everything else. And one other considerations you know,

may and do factor into play. Justice COURSEU asked whether the Court shouldn't leave matters to Congress, saying the Court's decision could lead to massive social upheaval, So he's really looking way beyond the text. Yeah, I mean, I think, you know, the notion that the Court should leave the decision of Congress, I think ignores the very possible answer

that Congress has already resolved this issue. Um. You know, there's no question that when it comes to statutory interpretation, UM, the Court's job is to act basically as the faithful agent of the legislature. And the question here is whether Congress, when it wrote that language into the statute, you know, would have had a hard time believing that as our understandings of sex based discrimination evolved that those understandings would

also be reflected um in what Title seven prohibits. You know, I think the notion that we should pump this back to Congress um may be attractive to the justices as a dodge, but I think it's inconsistent with the notion that we can you know, resolve these cases many times

by just looking at what the words say. Now, what has the trend been in the courts of late in the lower courts as far as the interpretation of the word six in the so yeah, I mean, part of how these cases got to the Supreme Court is the lower courts have actually divided, at least in the context of sexual orientation UM. There actually hasn't been nearly as

much percolation on the question of transgender status. I mean, I think, you know, courts are relatively new to the problem of how to map onto you know, gender identity UM and non binary gender status UM sort of relatively classical constructions of of sex UM. But you know, the lower courts I think have been more um skeptical. I think of of extended Title seven to the transgenderal context.

I think part of what's interesting about the Supreme Court here is there was no question that the Supreme Court really was going to have to step in, at least on the sexual orientation cases, because the lower courts had divided. The Court really reached out to take up the transgender status case. Um. There really had not been the full kind of development in the lower courts that we usually

see before the Supreme Court weighs in. And you know, I think some speculation there is that maybe the Court thought it could split the difference um and hold the Title seven extends to one of those class of cases but not the other. You know, I did not see a lot in the argument transcript from Tuesday suggesting that

the Justices are looking at the cases that way. They may end up there, but at least, you know, based on the arguments, they seem to be, you know, viewing all three of these cases as rising and falling on the same arguments. Is this case a test of whether Justice Kennedy's legacy in terms of gay rights will survive a more conservative court. I think this case certainly is a very important referendum on how the Supreme Court looks

after Justice Kennedy. You know, I think folks um. Probably will remember that one of Justice Kennedy's real I think visible contributions UM was writing for a majority, the majority of the Court and just about all of the Court's major decisions in the area of gay rights. I mean, from Roman versus Evans to Lawrence versus Texas, to Windsor which struck down Doma to a burgher Fell in gay marriage.

Those are all opinions by Justice Kennedy. These cases are a little different June, because these are statutory cases, UM, But you know, the implications I think are at least as profound um. And so yeah, I mean, I do think that if the Court ends up not um treating sexual orientation UM and or transgender status as sex based discrimination for persons the title seven, I think that really will be a sign of you know, a sign of

the times of a post Kennedy court. On the flip side, I mean, if the Court ends up agreeing with the planeffs here, UM, I think that I'll be as signed of, perhaps of how much of the Court itself has moved, maybe because of Justice Kennedy's contributions. Can you tell it all or venture a guess from reading the transcript as to which way they'll come down. You know. I sometimes you really can go through a Supreme Court transcript and have a pretty good feel for how the courts can rule.

I don't really see it here. I mean, I think it's pretty clear that it's going to be sharply divided. UM. I think it's a pretty safe bet that, you know, the four progressive justices are likely going to side with the planets at least in the sexual orientation case. UM. You know, maybe they'll try to split the difference with some of their conservative colleagues. I think it's almost certain that, you know, at least three of the conservatives um will

side with the employers in both cases. And I think, you know, the real question becomes, what about you know, the the justices who really are increasingly in the median um, if not in the middle, And that's you know, Justice Gorstch, Chief Justice Roberts, maybe Justice Kavanaugh, and I just you know, I don't know that we can have any confidence from the transcript how really any of those three are going

to vote in these cases. Finally, the Trump administration was fighting on both sides of the issue in this case.

The e o C on one side, and the Justice Department on the other So yeah, I mean the you know, this happens sometimes where you have you know, government units that have independently degating authority that have their own position, And the e o C historically has actually been a leader in this space, whereas the Justice Department, I think, was you know, quite aggressively pushing on behalf of the

employers in these cases. You know, I think that's not unheard of, although it's always a little awkward when you see it. Um you know, where you see the sort of the agency tapped with actually enforced them our employment laws coming out one way, and the Justice Department is saying, you know, no, you shouldn't. I don't know that that's going to tip the scales, you know in these cases.

I think the justices don't need the help. Um that really, I think what this is going to come down to is as between really what should be a relatively straightforward case under you know, modern textualism, and the concerns that you know, Justice course has alluded to it. The argument which way the justices are gonna go? Um, anyone who knows for sure? I think because is either you know,

one of those justices or is selling something. Thanks Steve that's Stephen Vladdock, Professor at the University of Czexis School of Law. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on bloomberg dot com slash podcast. I'm June Brosso. This is Bloo bird ter.