Tuesday, June 16, 2020

Equal Justice Under Law

The Supreme Court states the obvious.

When Donald J. Trump was elected president, gay and lesbian leaders warned that their far-reaching victories under Barack Obama — including the Supreme Court’s decision legalizing same-sex marriage in 2015 — were in peril, endangered by the imminent arrival of scores of conservative judges and full Republican control of the federal government.

So it would be an understatement to say that gay rights leaders and supporters were surprised by the court’s ruling on Monday that the 1964 Civil Rights Act protects gay and transgender Americans from workplace discrimination. They were stunned. Stunned that two conservative justices had sided with them. Stunned that this happened on top of a Republican appointee writing the marriage ruling, too.

In many ways, the decision is the strongest evidence yet of how fundamentally, rapidly and, to some degree, unpredictably American views about gay and transgender people have changed across the ideological spectrum in less than 20 years. It is all the more striking after the Trump administration moved last week to erase protections for transgender patients against discrimination by doctors, hospitals and health insurance companies.

The 6-to-3 ruling is the latest in a swift series of legal and political advances for gay Americans after several decades where gains came in fits and starts after the uprising at the Stonewall Inn in Greenwich Village helped usher in the modern gay rights movement 51 years ago this month. But this ruling could well be remembered as one of the last big legal battles, the achievement of a major priority of gay and lesbian people since gay activists gathered across Lower Manhattan in those weeks after Stonewall.

And it is potentially the movement’s most consequential victory yet, with implications that could touch the lives and livelihoods of more Americans than any gay rights decision by the court so far.

“As of today, nowhere in the United States is it legal to fire someone for being lesbian, gay, bisexual or transgender. That’s a big deal,” said Roy T. Englert, a Washington appellate lawyer who wrote an amicus brief in the case aimed at convincing the court’s conservatives, like Justice Neil M. Gorsuch, who wrote the opinion handed down on Monday, that the law as written in 1964 covered employment discrimination based on sexual orientation and gender identity.

It is a very big deal, five years after the legalization of same-sex marriage, and it is a very long time in coming that it took over 55 years from the passing of the civil rights law to decide that yes, the law does apply to everyone.  The resistance to such bigotry and narrow-mindedness is dissipating, although you can be sure that the evangelical con artists will be using the decision to shake down their marks.

Some commentators seem surprised that Trump-appointed Justice Gorsuch not only joined the the decision but wrote it.  But to my mind, liberal and gay though it may be, this is a conservative opinion.  No new law was rendered out of the text or an interpretation wrought by the inference of the Civil Rights Act of 1964.  It basically says the no person shall be denied equal protection of the laws based on account of sex, and Justice Gorsuch concurs:

“When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest,” Justice Gorsuch wrote in the opening paragraphs of his opinion. “Only the written word is the law, and all persons are entitled to its benefit.”

His conclusion: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” And therefore, he said, the employer is in violation of the Civil Rights Act and the law.

That’s pretty straightforward to me, and it would be both ironic and hypocritical of those who rail against Roe v. Wade for being “extratextual” if they now say that Title VII denies equal protection to the LGBTQ community.

By the way, pundits are saying that equal rights for the LGBTQ community have moved “very rapidly” from the fringes to the mainstream.  Well, it’s been 51 years since Stonewall to this ruling.  Not to begrudge or acknowledge the changes, but that’s not exactly rapid.  But at least it’s happening.

One bark on “Equal Justice Under Law

  1. Taking into account the change in how LGBT people have been perceived, the present attitudes represent a complete reversal. For something on this scale, fifty years isn’t really all that long.

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