On October 8th the Supreme Court will hear three cases involving LGBTQ rights. The outcome has far reaching implications for LGBTQ protection from discrimination and hate crimes.
According to the Daily Beast, in 2010 Donald Zarda was fired from his job as a skydiver with the Long Island Altitude Express. He came out to a customer as gay when the woman expressed discomfort being tethered to him during a jump. The company alleges that Zarda touched the woman “inappropriately” which the family denies. Zarda was killed in a skydiving accident several years ago and the family is bringing the case forward on his behalf.
In 2012 Aimee Stephens was fired from her job at R.G. and G.R. Funeral Homes in Michigan for being transgender. At work she dressed as a cisgender man, but outside of work she was herself, a woman.
In the third case, Gerald Bostock was fired from his job as a child welfare services worker in Clayton County, GA, for being gay. The agency claimed Bostock was fired for mismanagement of funds, but he contends he was fired for being gay. In many states, workers can be fired for being gay (See Map)
At question here is whether Title VII of the Civil Rights Act of 1964 covers sexual orientation and sexual identity. In response to the three above cases, the occupant’s administration has argued that Title VII does not include sexual orientation or gender identity and it is therefore legal to fire and discriminate against people who are LGBTQ. The Department of Justice (DOJ) argues that sexual orientation and gender identity are traits and are therefore not covered by Title VII. The DOJ has filed an amicus brief in support of Stephens’ employer, and is effectively arguing against itself as the Equal Employment Opportunity Commission (which is part of the DOJ) is on Stephens’ side.
The Supreme Court, in past years, has ruled favorably for the LGBTQ population. According to the History Channel, the Supreme Court voted on LGBTQ rights as early as 1958. Although initial rulings denied rights to the LGBTQ population they set important precedents that paved the way for more favorable rulings.
In a 1958 postal authorities refused to distribute a gay magazine on the grounds that it was obscene. The Supreme Court ruled that obscene speech is not protected by the first Amendment. What is significant about this case is that the Supreme Court ruled that “obscenity and sex are not synonymous.” And ideas with “even the slightest redeeming social importance,” including controversial ideas are protected.
In 1996, the case Romer v. Evans found that the Colorado voter initiative violated the Constitution’s equal protection clause. The argument posited that by protecting the LGBTQ population, it constituted “special rights” for a specific population. Writing for the majority, Justice Anthony Kennedy wrote, “These protections constitute ordinary civil life in a free society.”
Two years later the Supreme Court ruled that same-sex harassment is covered under Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination on the basis of sex, race, color, national origin and religion. And we all know how well that has worked out for women and minorities.
Perhaps most significantly, the Equal Marriage Protection Act of 2015 made marriage equally available to all people.
According to a New York Times article, the current case coming before the court in October “…may turn on whether the Justices focus on the words of the statute or their sense of what the lawmakers who voted for it in 1964 understood what they were doing.“
The New York Times article continues: “In a 1998 decision in a Title VII case, Justice Antonin Scalia wrote ‘that it was the words that matter. Statutory prohibitions, he wrote, often go beyond the principal evil to cover reasonably comparable evils and it is ultimately the provisions of our laws rather than the principle concerns of our legislators by which we are governed.’” If that remains true, these cases have a chance of making a stand in favor of equality for the LGBTQ community.
If the court rules in favor of the employers, it is a start down a slippery slope. Can someone be fired if they “look” gay? Who gets to decide? Will there be an affidavit one has to sign and produce on demand to potential employers? Will there be an arm band one has to wear to announce their sexual orientation once it has been determined that one is gay?
If these cases rule in favor of employers, LGBTQ rights will be set back in frightening ways. In spite of the idiotic cases about who bakes wedding cakes and what services can be denied to whom on the basis of sexual orientation, the larger questions of health care, access to loved ones in the hospital and how first responders treat those in need of medical attention are not far from being on the table for discussion.
These cases have the potential to declare open season on the LGBTQ community, paving the way to blatant discrimination in housing and employment, not to mention increases in violent crime.
The occupant’s agenda to appease his right wing cronies is to support these discriminatory practices. That this right wing contingent identifies itself as “Christian” is maddening because everything they stand for has nothing to do with Jesus, his teachings, or the truth of who God is. They are religious (not to be confused with faithful) bullies hiding behind a smokescreen of phony piety to push a conservative social agenda designed to preserve straight, white male power.
This is also a prelude to a wholly different concern: increasing partisanship in Supreme Court rulings. The Supreme Court is to be a bastion of neutrality, beholden to no one and committed to the rule of law and the best interests of Americans whose cases come before them. Supporting blatant discrimination puts the Supreme Court in a slippery slope of partisanship and should make us all nervous regardless of our sexual orientation or identity.
The Irreverent Reverend 