The membership of the Supreme Court of the United States is divided. Half its members live in 2019. The other half lives in 1919. The other half is winning.
On Tuesday the court heard arguments in three cases that ask a question you should be offended to hear still asked today: may an employer fire a worker for being gay? The answer in most states, including Florida, is yes. “The Handmaid’s Tale” is no tale in those states. If you are gay, you are a gender traitor.
Gerald Bostock is Gender Traitor number one. He was employed by Clayton County, Georgia, for 10 years. He built a program to help neglected and abused children. He got cancer, survived cancer, then joined a softball league to overcome the strains of the illness. A gay softball league. Soon after that, he was fired. The county says his being gay had nothing to do with his firing, but it also says that he’s not in a protected class and the county would not be at fault for firing him for that reason.
Donald Zarda was Gender Traitor number two. He was a skydiving instructor in New York. When a woman worried about being strapped to him for a tandem dive, he told her not to worry, he was “100 percent gay.” Then he was fired. He filed suit in 2010 but died in a BASE jumping accident in 2014. The lawsuit continued. Two lower courts ruled in his favor, as have most courts facing similar cases. But very possibly not the supreme court.
Had Anthony Kennedy still been on the court, the cases would have been decided in favor of the gender traitors. But Kennedy was replaced by Justice Brett Kavanaugh, who is vigorously heterosexual. The surprise on Tuesday was Justice Neil Gorsuch, who replaced Antonin Scalia. Gorsuch signaled that his vote may be in play. He said the way the Civil Rights Act of 1964 is written, the question is “really close,” in his words.
Actually, it isn’t. The language of the Civil Rights Act seems clear. It forbids discrimination based on race, religion, national origin and sex. To the justices living in 2019, the word sex means what it says: you may not be discriminated against whether you are a man, a woman, or anything in between. And if we read the law from the textualist perspective the late Scalia loved so much and his acolytes on the court still claim allegiance to (as does Gorsuch especially), then there’s no room for wondering what Congress intended or thought or imagined when it passed the law in 1964. The text is all, as Scalia himself wrote for a unanimous court in a 1998 case with a lot of similarities to the gender-traitor cases today.
A man in an eight-man crew on an oil rig had been sexually harassed by his male colleagues. He sued. “[M]ale-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” Scalia wrote. “But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
If precedent matters, the same words could be applied to the cases before the court now. Yet to the justices living in 1919, “sex” means only women, since Congress in 1964, it’s true, had no clue about transgender issues and only vaguely acknowledged the existence of gays and lesbians. It’s the sort of reasoning that would, for example, take the word “religion” in the Civil Rights Act and say it only applies to Christians and Jews and maybe a few Hindus because at the time Muslims and Wiccans weren’t on Congress’ radar.
It doesn’t work that way, except in the eyes of justices conducting their textual version of genital mutilation to redefine the word sex in their puritan image. John Roberts, the chief justice, is worried that siding with the traitors would leave unprotected company owners’ religious convictions, which might preclude them from accommodating people like Aimee Stephens. Her boss is a conservative Christian, and conservative Christians, as our legal code now makes clear, know better than science what is and what isn’t a man or a woman. They’re not so much above the law as the law when it comes to defining workers’ rights. Companies can now deny their employees contraception because god says so. Businesses can now deny service to customers because they’re gay, and because god says so. So companies must be allowed to fire employees if god and John Roberts say so.
Gorsuch is uncomfortable for a different reason. He thinks if the court rather than Congress were to decide cases like this, it would lead to “massive social upheaval.” While many Americans might be for a lusty stoning once in a while, you’d think they’d have taken to the streets and caused “massive social upheaval” after the court legalized gay marriage a few years ago. Sure, there was the occasional court clerk who played Custer at Little Big Horn with gay marriage licenses, but those were mostly publicity stunts for the Fox troth. The norm was more like our own clerk who, even in scarlet-red Flagler and for all her Christian conservatism (if not because of her Christianity) was ready to issue gay marriage licenses the moment the decision was law, and did.
No upheavals. No judgments. Just respect for the dignity of equality.
Gerald Bostock, Donald Zarda in memory and Aimee Stephens are asking for nothing less, or more. But here we are. A 5-4 decision that should have been 9-0 is on the way. It’s actually uncertain, if not likely, that the court will rule in favor of discrimination. By then it will be June 2020 according to most calendars. For millions of gays, lesbians and transgender people, those calendars will be a lie, as will be America’s claim to equal treatment for all.
Blessed be the fruit.