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Can the Supreme Court Bring Us Together, Rather than Drive Us Apart? Part I

In hearing the latest LGBT+ cases, justices on the Supreme Court demonstrate well the thoughtful dialogue needed in legislative debates.

Earlier this month, the U.S. Supreme Court heard oral argument on the first cases to address LGBT+ issues since Justice Kennedy’s retirement potentially shifted the balance of the Court on social issues. The pending cases will decide whether prohibitions in Title VII of the landmark Civil Rights Act of 1964 against employment discrimination “because of sex” should also be interpreted to include discrimination on the basis of sexual orientation and gender identity. During oral argument, the justices demonstrated the type of thoughtful and considerate dialogue currently needed in legislative debates that have ground to a standstill.

Gradually, over three decades, roughly half of the States expanded their nondiscrimination laws to include sexual orientation and gender identity. But these legislative initiatives largely came to a halt when administrative agencies began aggressively applying these state laws to penalize religious business owners and then to force changes to widely accepted policies on gender-specific bathrooms, dress codes, and sports teams. For more than a decade now, the country has been divided evenly between Democratic-controlled states that have often applied their nondiscrimination statutes without regard to concerns for religious liberty or privacy, and Republican-controlled states that mostly refuse to provide any LGBT+ protections whatsoever. The same standstill exists in Congress, where the so-called Equality Act (previously the Employment Nondiscrimination Act) has been sidelined by the Senate because the bill’s supporters oppose certain accommodations for religious liberties and traditional norms around gender-specific privacy. 

Legislators in Congress and the States could learn a great deal from the candid, considerate, and civil deliberation among the justices of the Supreme Court during the recent oral arguments over the scope of Title VII. After all, it’s in the legislature, not the courts, where lasting compromises and overlapping protections that provide fairness for all should ultimately be negotiated and enacted. 

Legislators in Congress and the States could learn a great deal from the candid, considerate, and civil deliberation among the justices of the Supreme Court.

LGBT+ advocates have often been deliberately vague about how nondiscrimination protections for transgender individuals would apply to gender-specific places of privacy. It’s one thing to prohibit someone from being fired for being transgender; it’s quite another to prohibit employers from enforcing gender-specific bathrooms, showers, and changing rooms. While Justice Sotomayor was plainly troubled by what she called “invidious discrimination,” she also urged the attorney representing a transgender employee not to avoid “the difficult issue” about bathrooms, and was willing to acknowledge what many liberal advocates have not: that there are “women who are made uncomfortable, and not merely uncomfortable, but who feel intruded upon if someone who still had male characteristics walked in their bathroom.”  That kind of candor would be refreshing in legislative discussions over how to balance these complex and sensitive issues. 

On the other side of the spectrum, political conservatives have often ignored the legitimate concerns that LGBT+ individuals have in securing workplace protections against indiscriminate terminations. Justice Gorsuch, one of the Court’s more judicially conservative members, made a conscientious effort to describe the conflicting opinions of the lower court as similarly “thoughtful,” recognizing, on the one hand, the “legitimacy” and “importance” of claims of employment discrimination against transgender individuals, and on the other hand cautioning that “drastic” changes are best addressed by legislatures. Conservative legislators might more effectively advocate for religious liberty and privacy protections were they first to acknowledge, as Justice Gorsuch did, that claims of discrimination against LGBT+ individuals are legitimate and important problems to address. 

While exhibiting the type of deliberation needed for legislative compromise, the justices refrained from appearing to commandeer that role for the Court. Justice Alito was especially apprehensive about stepping into an arena where Congress has deliberately decided not to act. Justice Gorsuch described this as a matter of “judicial modesty.” And Chief Justice Roberts noted that bypassing the legislative process could undermine the potential for reaching compromise on religious exemptions, as some states (notably Utah) have achieved. 

Our legislators would do well to follow the example of the justices in their meaningful and civil dialogue and also seek to find the meaningful compromises on these issues for which so many in our country continue to yearn.

Significantly, their concerns were not lost on the less conservative members of the Court. Justice Breyer, in particular, described this issue as “the elephant in the room” while questioning the U.S. Solicitor General. Arguing in support of the employers sued for discrimination, the Solicitor General warned that a decision by the Court expanding Title VII to include sexual orientation and gender identity would be “a complete victory to one side of the fight,” sidestepping the potential for meaningful compromise and accommodation in the legislative branch. Justice Breyer admitted candidly this was “an argument in your favor.” When he then asked whether the original intent of Title VII to end discrimination could be read now to encompass society’s changing attitudes toward LGBT+ individuals, the Solicitor General responded that a judicially mandated expansion of the Civil Rights Act “deprives the people of the ability to struggle with these issues democratically” and to “convince one another that this is the right thing to do.” Justice Kagan, notwithstanding her evident inclination to see LGBT+ minorities protected under the law, also acknowledged that the Solicitor General’s appeals to leave the matter to the democratic process, with its potential for balancing competing interests, were “thoughtful responses.” 

Over the two hours of oral argument, the justices’ questions and observations exhibited the type of mutual respect and consideration that has often been lacking in the emotional debates over the intersection between LGBT+ protections, religious liberties, and privacy concerns. If, as it seems most likely, the justices leave these challenges to Congress and the States to resolve, our legislators would do well to follow the example of the justices in their meaningful and civil dialogue and also seek to find the reasonable compromises on these issues for which so many in our country continue to yearn. 

About the author

Michael K. Erickson

Michael K. Erickson is a litigator in Salt Lake City. He was the Executive Editor for BYU Law Review. He is a contributing editor for Public Square Magazine.
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