Why Gorsuch upheld civil rights for LGBTQ Americans

In a landmark, and unexpected, decision yesterday, the U.S. Supreme Court ruled that firing an employee because of their sexual orientation or gender identity violates federal law.

In what could be a month of blockbuster decisions from the high court, the ruling immediately ranks among the most consequential civil rights rulings in the court’s history, experts say. The fact it came from a court with a small but deeply conservative majority – and that so many people tried to access the opinion online it crashed the court’s website – only heightened the drama.

To hear Justice Neil Gorsuch – who wrote the 6-3 majority opinion – tell it, the landmark ruling was a straightforward one. The 172 pages of opinions tell a more complicated story – one of three-pronged debate between the court’s conservative justices over the best practices of textualism, a judicial method of interpreting laws based on the “ordinary meaning” of the text.

Title VII of the 1964 Civil Rights Act prohibits employment discrimination based on “race, color, religion, sex and national origin.” In that statute, the majority held that “sex” covers people who are “gay or transgender.” 

“Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result,” wrote Justice Gorsuch. “But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”

“When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest,” he added. “Only the written word is the law, and all persons are entitled to its benefit.”

Required reading 

The ground-level effects of the ruling are significant. In 25 states there are no explicit prohibitions against discrimination based on sexual orientation or gender identity. It also came days after the Trump administration – which had opposed the LGBTQ employees in the case – eliminated regulations prohibiting discrimination against transgender patients in health care.

“This is as important a ruling as Obergefell [v. Hodges],” the 2015 decision legalizing same-sex marriage, says Michael Boucai, a professor at the University at Buffalo School of Law, “simply because employment is such a basic human need.”

And when one of the high court’s staunchest defenders of LGBTQ rights, Justice Anthony Kennedy, retired in 2018, most court watchers expected those rights only to get rolled back.

“It’s a matter of great good luck that the arguments that could be made in this case are obviously going to appeal to someone like Gorsuch,” says Mary Anne Case, a professor at the University of Chicago Law School.

“It would have been hard for Gorsuch to cast a different vote without looking unprincipled,” she adds.

All nine justices would consider themselves textualists, to the extent they give the actual text of a statute significant weight when they interpret it. But Justice Gorsuch may be the strictest.

“The role of a judge is to say what the law is,” he said during his 2017 confirmation hearings. “Before I put a person in prison, before I deny someone of their liberty or property, I want to be very sure that I can look them square in the eye and say, ‘You should have known.’”

Yet he is also a conservative justice with a strong belief that the Supreme Court should not be driving social change. This case brought those two core principles to a head, and strict textualism won.

In a detailed, 32-page scrutiny of the “because of ... sex” phrase in Title VII, he makes the pivotal holding that while the law doesn’t explicitly reference LGBTQ employees, and while Congress in 1964 may not have intended it to cover them, it protects those employees nonetheless.

“When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex,” he wrote.

Title VII “is a major piece of federal civil rights legislation. It is written in starkly broad terms. It has repeatedly produced unexpected applications,” he added. “The same judicial humility that requires us to refrain from adding to statutes requires us to refrain from diminishing them.”

Monday’s ruling also suggests that, if Congress were to pass clearly articulated legislation expanding protections for LGBTQ Americans, this court would uphold it. LGBTQ Americans are “still unprotected from discrimination in housing, and discrimination in public accommodations,” says Kimberly West-Faulcon, a constitutional law professor at Loyola Law School in Los Angeles.

Monday’s rationale for enshrining new civil rights for LGBTQ Americans differs markedly from Obergefell, the high court’s last major opinion in the area.

First, that case concerned a constitutional question instead of a statutory one. The Supreme Court is typically more reluctant to reinterpret the Constitution than a statute, but former Justice Kennedy was also plain in his opinion that while the 14th Amendment’s due process clause didn’t guarantee a right to same-sex marriage, it should.

“The nature of injustice is that we may not always see it in our own times,” he wrote. “When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

“It applies to us”

Justice Kennedy was joined in that opinion by the court’s four liberal justices, and that judicial philosophy – that laws and the Constitution can and should evolve with the times – is traditionally popular on the left. 

Textualism is traditionally popular on the right, but yesterday’s ruling showed that it can also contain multitudes.

As Justice Samuel Alito wrote in a dissent (joined by his conservative colleague Justice Clarence Thomas), the majority opinion is not textbook textualism, but a “pirate ship.”

“It sails under a textualist flag,” he wrote. But “there is only one word for what the Court has done today: legislation.”

“When textualism is properly understood, it calls for an examination of the social context in which a statute was enacted,” he added.

The social context 50 years ago, he argued (with 52 pages of appendices), included that sodomy was a crime in every state but Illinois, and that discrimination because of “sex” was understood “to refer to men and women.”

In his own dissent, Justice Brett Kavanaugh leveled a different textualist argument: that the majority doesn’t apply the “ordinary meaning” of the text of the law, and that it departs from how “sex” discrimination has been interpreted in federal law for 25 years.

The robust debate over how to interpret statutes by itself makes the case something of a landmark, says William Eskridge, a professor at Yale Law School and author of the forthcoming book “Marriage Equality: From Outlaws to In-Laws.” Both dissenters cited his research on statutory interpretation and the history of LGBTQ rights, but in his opinion, Justice Gorsuch won the debate.

“He accounts and relies on more text than the dissenters do. He explains more text, he is more thorough on the textual front,” adds Professor Eskridge, who also wrote an amicus brief supporting the LGBTQ employees in the case.

This kind of schism between the court’s five conservatives has not been unusual since President Donald Trump consolidated their majority with the appointments of Justices Gorsuch and Kavanaugh.

“This is a 5-4 majority, so if even one vote defects that majority isn’t there, and the conservative justices do have many disagreements among themselves,” says Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School.

“It varies by the issue,” he adds. “Gorsuch has been more willing to subvert expectations than other conservatives.”

While this is a landmark ruling for LGBTQ civil rights, the majority acknowledged that some important questions remain unanswered. Notably, the degree to which this ruling might burden an employer’s free exercise of religion, and whether transgender people can use sex-segregated bathrooms or locker rooms in line with their gender identity.

“What the court has given here it can potentially take away with a vengeance” when it comes to religious employers, says Professor Case. “And if they do that it [could] not just be LGBT employees left with little to no protection, it [could] be every employee on every ground, with perhaps the exception of race.”

This move could begin as early as this month, with the justices deliberating over a case argued last month over the “ministerial exception” doctrine, which bars certain employees of churches or other religious institutions from suing their employers for employment discrimination.

But the ruling is still a momentous one. Title VII, as Professor Eskridge describes it, is a “super statute.”

“It has more ramifications for most Americans than the Constitution does, in terms of individual rights,” he says. “Discrimination based on sex – that’s a whopper. It’s a broad statute, and it applies to us.”

“What is important to us? It’s the same things that are important to other Americans,” he adds. “That’s to not be [criminalized]; to have our families recognized; and to have jobs and not to be discriminated against.”

Staff writer Story Hinckley contributed to this report.