SALT LAKE CITY — The Supreme Court will decide if it’s legal to fire someone for being gay or transgender when it rules on three high-profile LGBTQ rights cases this term. During oral arguments for the cases on Tuesday, justices had far more than the fates of LGBTQ workers on their minds.
Chief Justice John Roberts brought up religious objectors to same-sex relationships and transgenderism, wondering if a court ruling in favor of gay rights could jeopardize people’s ability to run a business in accordance with their beliefs.
When state legislatures have passed new protections for LGBTQ workers, they’ve often expanded protections for faith-based business as well, he said, noting that the Supreme Court doesn’t have that kind of balancing power.
Justice Neil Gorsuch hinted at the potential for “massive social upheaval” as he asked about how the cases could affect employers nationwide. He highlighted how a ruling for LGBTQ workers might require businesses to update their dress codes and bathroom policies, questioning whether it’s appropriate for judges to force such a change.
Justice Samuel Alito worried about the Supreme Court becoming a second Congress and stepping in to create new laws when elected officials failed to get anything done.
“If the court takes this up and interprets (federal employment law) to prohibit discrimination based on sexual orientation, we will be acting exactly like a legislature,” he said.
These remarks aren’t surprising if you’ve followed debates surrounding the cases over the last few months. Legal experts on both sides have said the court’s decision will be nearly as significant as its 2015 same-sex marriage ruling, and the justices on Tuesday acted like they agree.
The three cases are focused on the federal ban on sex discrimination in the workplace, which is part of Title VII of the 1964 Civil Rights Act. The Supreme Court will determine if discrimination based on sexual orientation or gender identity is a form of discrimination based on sex.
For most of the last six decades, sex discrimination has been interpreted narrowly as a prohibition on treating someone adversely based on their biological sex. Sex discrimination cases involved claims that a company fired a female employee for becoming pregnant or paid women less than men even when they had the same professional qualifications.
However, in recent years, some courts have been sympathetic to sex discrimination claims made by gay and transgender workers. They’ve said punishing a worker in a same-sex relationship amounts to punishing them because of their sex.
“When a man is discriminated against for being gay, he is discriminated against for not conforming to an expectation about how men should behave,” said Pamela S. Karlan, who argued before the Supreme Court on behalf of two men who were fired soon after their employers found out they were gay.
Many conservative legal advocates reject this claim, arguing that LGBTQ rights activists and liberal judges are ignoring the true meaning of employment law. The policymakers who passed Title VII in 1964 would never agree that “sex” includes sexual orientation and gender identity, they say.
During oral arguments, the more conservative justices appeared to agree that sex discrimination protections should only be applied narrowly. They cited recent congressional efforts to pass LGBTQ nondiscrimination protections, like the Equality Act, and questioned why lawmakers would pursue them if such protections already exist.
“Congress has been asked repeatedly in the years since 1964 to address” protections for LGBTQ workers, Alito said. “Congress has declined or failed to act on these requests.”
Attorneys for LGBTQ workers tried to brush off comments like these. They said a ruling in favor of gay and transgender workers would not amount to a dramatic legal change.
“We’re not asking that you update the statute. We’re not asking that you redefine sex,” said David Cole, national legal director for the ACLU.
The views of policymakers in 1964 shouldn’t be the determining factor in the court’s ruling, said Justice Ruth Bader Ginsburg at one point. Sex discrimination didn’t originally include sexual harassment, but it does today.
Similarly, Justice Elena Kagan argued that her fellow justices should pay less attention to the intent behind Title VII and more to what the law actually says.
“For many years, the lodestar of this court’s statutory interpretation has been the text of a statute, not the legislative history, and certainly not the subsequent legislative history,” she said.
As they worked to convince the justices that a ruling in favor of LGBTQ workers wouldn’t involve redefining employment law, Cole and Karlan also tried to quiet fears about how such a ruling would affect America as a whole.
For example, in response to Roberts’ question about religious objectors to same-sex relationships, Karlan explained that few religious business owners would require exemptions to a nondiscrimination law.
“There are many employers whose own religious beliefs would tell them this would be immoral for them, who have no problem hiring gays and lesbians who are qualified to do a job,” she said.
Many religious freedom advocates, including the leaders of faith-based schools like Brigham Young University, argued the opposite in the lead-up to oral arguments, claiming that a ruling in favor of LGBTQ workers would make it much harder for them to live out their faith in the public square.
“Redefining protected classes in the law could have serious ramifications for religious liberty, and in particular, religiously affiliated organizations. It is vitally important that federal employment discrimination law is not rewritten to hinder the religious freedom of churches, synagogues, mosques, religious schools, religious charities and all other nonprofit ministries,” said Stephanie Taub, senior counsel to First Liberty Institute, in a statement.
Other people of faith have said religious freedom should never justify discrimination.
“The religious freedom enshrined in our Constitution is meant to protect the right to practice any religion, or no religion at all, without harming others,” said Rachel Laser, president and CEO of Americans United for Separate of Church and State, during a “Protect LGBTQ Workers” rally that took place on the steps of the Supreme Court Tuesday morning.
Like religious Americans, Supreme Court justices appear divided over which way their ruling should go. During oral arguments, Gorsuch joked that it would be unnatural for them to feel any other way.
“Oh, neither side ever thinks a case is close,” he said. “Judges always do, don’t they?”
The Supreme Court’s ruling is expected by the end of June.