Neil Gorsuch Stuns the Nation, Does the Right Thing

Neil Gorsuch Stuns the Nation, Does the Right Thing

Neil Gorsuch Stuns the Nation, Does the Right Thing

In a forceful decision, the Supreme Court grants an emphatic victory to LGBTQ rights.


The LGBTQ community has officially and emphatically been included in the protection offered by the Civil Rights Act of 1964. In three consolidated cases called Bostock v. Clayton County Georgia, the Supreme Court ruled on Monday that the Civil Right Act’s Title VII prohibition of discrimination in the workplace on the basis of “sex” includes a prohibition against discriminating against gays, lesbians, and transgendered people.

Archconservative Neil Gorsuch wrote the majority opinion. He was joined by Chief Justice John Roberts, as well as the four liberal justices: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Often, when you have one of these opinions signed by both liberal and conservative justices, the decision is very narrow. In such situations, it’s not unusual for one side or the other to write what’s called “concurring” opinions, in which they will agree with the outcome but offer their own, usually more expansive, reasons for arriving at the conclusion.

Not this time. Gorsuch wrote a civil rights opinion whose main substance could have been written by Sotomayor—or Thurgood Marshall or Harvey Milk. Here are two sentences from the opinion that I never expected to hear from a conservative justice appointed by Donald Trump and approved by Mike Pence: “The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

That is no half measure. Those sentences are a complete victory for the activists and advocates and lawyers and allies who have long said that discrimination against the LGBTQ community is illegal. It is also, by far, the biggest legal win for the transgender community, ever.

It is not a perfect ruling. While any of the liberal justices could have written the same opinion in substance, the chief justice’s decision to let Gorsuch write it gave Gorsuch a chance to lay intellectual cover for future bad decisions he will make. Gorsuch is doing what’s called a “textualist” reading: He’s saying that when the text is clear, he doesn’t have to go back to the “original” intent of the lawmakers. Which sounds good, until you remember that Gorsuch claims special powers to know when the text is clear and when it is unclear.

In this case, Gorsuch’s interpretation of the text comports with a modern understanding of the law. In another case, however, Gorsuch might decide that an archaic definition is “clear,” while in still another he might decide the text is unclear and look at what Thomas Jefferson would have wanted. Gorsuch’s interpretation of the text is going to work against a robust protection of rights more often than it works to promote them.

But that can be a problem for another day. Today, Gorsuch divined that the text of Title VII “clearly” protects gay and trans people, which is a happy conclusion and the right conclusion. It is also, it must be said, the same conclusion a mere mortal could have come to by simply looking at the last 30 years of legal precedent.

Despite the seismic nature of the ruling, no new rights were granted in this case. That’s because many lower federal courts have deemed that the LGBTQ community is functionally protected by Title VII since the 1989 case Price Waterhouse v. Hopkins. In that case, the court ruled that employers could not discriminate against people who didn’t conform to the sexual stereotype preferred by their employer. It’s basically the “no, she doesn’t need to smile more” case.

The Bostock case came about all these years later not as part of a progressive effort to make those Title VII protections apply explicitly to the LGBTQ community, but as the result of decades of conservative activism, led by groups like the Federalist Society and the judges they support, to get the LGBTQ community excluded from the protections many judges and scholars think they already enjoy. The conservative goal has been to force Congress to rewrite Title VII to explicitly include LGBTQ people, thus giving conservative political candidates another culture-war issue to fight about, while trusting total gridlock in Washington to prevent any such rewrite from ever happening.

The majority opinion shifts the burden away from the courts and puts it squarely on anti-LGBTQ politicians to continue this fight. If conservatives want to change the law, they are now free to organize and elect congresspeople and senators who oppose LGBTQ rights and want to run on a platform rewriting the Civil Rights Act to exclude them.

One way to know that this was a major victory for the LGBTQ community is that alt-right forces are having a meltdown over the decision. (Ben Shapiro’s tears taste particularly delicious right now.) While Gorsuch’s majority opinion was just 33 pages, Justice Samuel Alito’s dissent was 54 pages, and included 172 pages of appendices that he offered as evidence, clear as I can tell, of the importance of genitalia over time. Trying to include all of this supposed evidence briefly crashed the Supreme Court website when the opinion was initially released. Anything that makes Alito this mad is, almost by definition, very good.

Still, the more important dissent might have been written by alleged attempted rapist Brett Kavanaugh. Yes, the justice that Susan Collins vouched for dissented from an LGBTQ rights opinion, something that Collins herself pretended not to notice when she tweeted out support for the court’s decision in Bostock. Kavanaugh argued that whether or not he thinks the LGBTQ community should be included in Title VII protections is irrelevant, since “we are judges, not Members of Congress.… Under the Constitution’s separation of powers, our role as judges is to interpret and follow the law as written, regardless of whether we like the result.” He, like the conservative lawyers who argued this case, pretends that Title VII does not already include the LGBTQ community, and argues that it is not the role of the court to extend the scope of that law.

This is significant, because it is exactly the same argument John Roberts made in his dissent from the marriage-equality decision, Obergefell v. Hodges. In that case, Roberts wrote: “Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law.”

I don’t know if Roberts has changed his mind on marriage equality. But I do know that when Kavanaugh effectively read Roberts’s own argument against marriage equality back to him, Roberts declined to go in for another round.

Roberts’s decision to switch sides is an important sign. Given the polarization of American politics, it’s unlikely that new LGBTQ rights laws are going to be written any time soon. Conservative politicians are very good at stoking MAGA fears over which bathroom people use, while many purple-state Democrats would rather hope for gay and trans rights than fight for them. If we’re not going to get new, robust laws about equality, then we’re going to need courts to continue including the LGBTQ community in what equal rights laws already exist.

Bostock is a significant civil rights victory and, with Gorsuch and Roberts on board, it feels durable as well. But make no mistake: Anti-LGBTQ discrimination has not been defeated. To risk a war analogy: This case is like surviving the Battle of Britain—invading Normandy and kicking the fascists off the continent is still a long way off.

Republicans will try to use this judicial defeat to motivate their base to show up to vote on November 3. Liberals have to be equally motivated to turn out in November and defend this victory.

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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