Showing posts with label Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts

December 14, 2019

Supreme Court orders Deutsche and Capital 1 Banks Most Comply With Congress and Release Trump/Fam Records

Image result for trump steals, banks
 The guy for the common man that steals and does not wants to get caught but finds a brother in arms with similar views from brown people to immigration to 'the money is ours if we can keep it'.

The Supreme Court agreed on Friday to take on three cases involving President Trump's finances to determine whether he can block the release of his records.

Why it matters: The court's ruling could give the American public a look at the president's finances after he has gone to great lengths to keep them under wraps.

The big picture: The court's decision could undermine Trump's argument that he is immune from criminal investigations while in office — an argument his lawyers have used in response to requests for his tax returns and financial records, per the New York Times.

How we got here: In one of the cases being examined, Trump asked the Supreme Court in November to keep his longtime accounting firm, Mazars USA, from turning over his tax returns to the Manhattan district attorney.

In another case, the Second Circuit Court of Appeals ruled in early December that Deutsche Bank and Capital One must comply with a congressional subpoena for Trump, his children, and his company's financial records.

Trump has filed at least three lawsuits to block the release of his tax returns. The president, his family, and his company also filed a lawsuit against Deutsche Bank to block the financial institution from complying with congressional subpoenas.
Source: Axios 

November 11, 2019

Anti Gay Justices, Alito, Bret and Kavanaugh are Urged to Recluse Themselves

               Image result for anti gay uS justices

 The director of a judicial activist group has written U.S. Supreme Court Justices, Brett Kavanaugh, and Samuel Alito, a letter demanding they recuse themselves from upcoming Supreme Court cases concerning LGBT rights, after the pair posed for pictures with the president of the anti-gay group National Organization for Marriage (NOM).

The liberal group Takes Back the Court advocates adding additional justices to the Supreme Court. Their executive director Aaron Belkin wrote the letter on Tuesday, and it was shared with their website and social media on Wednesday. The letter concerns a recent photo showing Kavanaugh and Alito posing with members of NOM and the Catholic Church's Congregation for the Doctrine of Faith.

The Supreme Court recently heard arguments in multiple cases that could have serious implications for LGBT employment rights. NOM has filed an amicus brief in at least one of the cases, urging the court to rule against LGBT rights.

NOM advocates for what they claim is "traditional marriage," and hope to take marriage rights away from same-sex couples. The group's president is Brian Brown, who boasted of a "great day at the US Supreme Court" when posting the contentious photo to his Twitter account on October 29.

Brown is also the president of the World Congress of Families, which has been designated a hate group by the Southern Poverty Law Center.

536 people are talking about this

Belkin claims that both Kavanaugh and Alito cannot reasonably be expected to be impartial in the LGBT cases, and have an ethical duty to recuse themselves in the cases.

"The credibility and impartiality of the current Supreme Court is in tatters," writes Belkin in the letter. "Posing for photographs with the president of an advocacy organization that has filed briefs in matters pending before the court makes a mockery of Chief Justice Roberts' assertion that a judge's role is to impartially call balls and strikes." 

"If you refuse to recuse yourselves, this incident will further illustrate the urgent need for structural reform of the Supreme Court in order to restore a Court that understands its role is to protect individual rights and our democracy," the letter ends.

U.S. Supreme Court Justices
The current justices of the U.S. Supreme Court pose for an official group photo on November 30 2018. Seated from left: Associate Justices Stephen Breyer, Clarence Thomas, Chief Justice John Roberts, Ruth Bader Ginsburg, and Samuel Alito. Standing from left: Associate Justices Neil  

 Kavanaugh is the newest member of the Supreme Court, having been sworn in on October 6, 2018, after dramatic and tearful confirmation hearings saw him confronted by allegations of sexual assault. Since his confirmation, further claims of sexual misconduct by Kavanaugh have emerged. Kavanaugh denies the allegations.

Alito was nominated by President George W. Bush and confirmed in 2006. Both justices are considered by observers to be particularly conservative members of the court.

"Justices Kavanaugh's and Alito's inappropriate conduct underscores the importance of judicial reform including expanding the Court," said Belkin to legal news website Law&Crime. "The Justices seem to be flaunting that they have the power to disregard ethics, decency, and fairness, and there's nothing anyone can do about it. But I'm not so sure that they're right."

The court is expected to rule on the LGBT cases in 2020.

October 10, 2019

Supreme Court To Decide If Puerto Rico Can Still Govern Itself


Mr. Bowie is an assistant professor at Harvard Law School.

In 1947, Congress passed and President Harry Truman signed a law giving the people of Puerto Rico the right to elect their own governor. Until then, all territories of the United States, including Puerto Rico, had been governed by men appointed by the president and confirmed by the Senate. Most governors had been known more for their relationships to the president than, say, for their ability to speak Spanish. But after that 1947 law, Puerto Rican voters elected Luis Muñoz Marín to begin what would become a transformative governorship.

Even as more recent governors have resigned in disgrace, democratic self-government in Puerto Rico has remained. But that could change. Next week, the Supreme Court is scheduled to consider a case that could radically undermine the ability of over four million American citizens — in Puerto Rico, other territories and even the District of Columbia — to elect their own chief executives.

The court is being asked to decide whether a constitutional provision that ordinarily limits Congress applies when Congress legislates for a territory. That provision, the appointments clause, requires all “officers of the United States” to be appointed by a specified procedure, typically by the president with Senate confirmation. Because of this clause, it would be unconstitutional for Congress to allow voters to elect the attorney general or secretary of state; those officers must be appointed and confirmed. But on the assumption that the appointments clause doesn’t apply to territories or the District of Columbia, Congress allowed for the election of Puerto Rico’s governor in 1947 and the district’s mayor in 1973.

Congress’s grant of self-determination was, paradoxically, justified by a series of Supreme Court decisions that were grounded in imperialism and white supremacy. Those decisions held that constitutional provisions that normally limit Congress’s powers don’t apply in the capital district or territories. But over the years, those rulings also led to laws that have allowed for the dignity of self-rule in those places. 

In 1820, for example, the court held that the needs of “the American empire” allowed Congress to tax district and territorial residents without also giving them voting representatives in Congress. “Representation is not made the foundation of taxation,” Chief Justice John Marshall explained without irony, despite having fought in a revolution premised on that issue.

And in the infamous Insular Cases of the early 20th century, the court allowed Congress to disregard the Bill of Rights when legislating for the territories of Puerto Rico and the Philippines. The court maintained that “the uncivilized parts” of those territories “were wholly unfitted to exercise” these rights, and Congress needed the discretion to decide when the islanders were ready.

But the one silver lining of Congress’s relatively unrestricted discretion to act in the District of Columbia and territories has been that Congress has had the same unrestricted discretion to establish democratic governments there.

For example, the Constitution normally prohibits Congress from delegating its lawmaking powers to a local government. Congress couldn’t allow the Cleveland City Council to enact new federal laws. But the Supreme Court has held that this “nondelegation doctrine” doesn’t apply in the territories or the District of Columbia. Accordingly, Congress approved a constitution for Puerto Rico in 1952 and home rule for the capital district in 1973, delegating to both local governments the power to pass laws for which Congress otherwise would be responsible.

Nevertheless, Congress hasn’t always been consistent about respecting this home rule — as next week’s Supreme Court case illustrates. 

The case will review a 2016 law known as PROMESA, in which Congress created an unelected oversight board to restructure Puerto Rico’s multibillion-dollar debt. Describing the board as an agency of the Puerto Rican government, Congress even gave it the power to revise the territory’s laws. This return to colonial supervision angered not only many Puerto Ricans, but also some creditors. The creditors went to court, asserting that the board’s members were appointed in violation of the appointments clause.

A Federal District Court judge rejected the creditors’ argument on the ground that the appointments clause doesn’t apply in the territories. But in February, the United States Court of Appeals for the First Circuit reversed that ruling, holding that Congress is bound by the appointments clause everywhere.

The First Circuit considered the unwelcome possibility that if the appointments clause applies to Puerto Rico, it might also require the appointment, not election, of Puerto Rico’s governor or the District of Columbia’s mayor. But it distinguished these officers on the ground that the appointments clause applies only to “officers of the United States.” The court maintained that the governor of Puerto Rico, by contrast, is an officer “of the territory,” suggesting that her authority comes from the Puerto Rican constitution and not federal law.

But only three years ago, in another case involving Puerto Rico, the Supreme Court emphasized that the Puerto Rican Constitution is United States law: Congress approved that Constitution and can amend it, which Congress effectively did with PROMESA. Territorial officers thus are officers of the United States in the same way that William Barr, as attorney general, is both an officer of the Department of Justice and of the United States.

Moreover, the First Circuit’s distinction between territorial law and the United States law wouldn’t save the Washington mayor, whose authority undoubtedly comes from federal law. So if the Supreme Court upholds the First Circuit’s application of the appointments clause to Puerto Rico without offering a new explanation of why the clause shouldn’t also apply to its governor, it could doom territorial — and district — home rule.

The court could, of course, overturn its noxious territorial precedent, giving district and territorial residents the same constitutional rights as other Americans to representation in Congress and everything else. Failing this wholesale revision, the court should explicitly preserve Congress’s power to create the conditions for local self-government in the territories and the District of Columbia. Otherwise, in the name of freeing Puerto Rico from unconstitutional oversight by an unelected board, the court might make Washington and the territories even more constitutionally anomalous and less democratic than they are now.

The promise of 1947 would, decades later, be broken.

Nikolas Bowie is an assistant professor at Harvard Law School, where he teaches constitutional and local government law.

October 9, 2019

The Showdown Over Firing LGBTQ Employees Over Their Orientation Started Yesterday on The Supremes



At the U.S. Supreme Court, the long-awaited showdown over the rights of LGBTQ employees is center stage. On Tuesday, the justices hear a set of cases testing whether the federal law that bars sex discrimination in employment applies to LGBTQ employees.
Specifically, the question is whether employers are free to fire employees because they are gay or transgender. Front and center in these cases is Gerald Bostock who, for 10 years, was the child-welfare coordinator for Clayton County, Ga. His primary responsibility was a program that provides advocates in court for abused and neglected children.
"It was the job I loved, and my employer loved me doing the job," says Bostock, noting that under his leadership the child advocates program "reached the benchmark of serving 100% of the children in foster care," an "unheard of milestone" for any such program in the greater metro Atlanta region.
"I was fired for being gay"
But in 2013, Bostock joined a gay recreational softball league. And "from that point on, my life changed, " he says. "Within months, I was fired for being gay. I lost my livelihood. I lost my medical insurance, and at the time I was fighting prostate cancer. It was devastating." 
Also front and center on Tuesday will be Aimee Stephens. She worked for the Harris Funeral Home in Livonia, Mich., as a funeral director for six years, presenting as a man. But by 2012, at age 51, she was in despair over her gender identity, and contemplating suicide.
"I stood in the backyard for an hour with a gun to my chest, but I couldn't do it," she says.
Stephens decided she would come out at work as a transgender woman. For eight months, she worked on a letter to her boss and co-workers telling them of her gender identity.
"In truth ... even I do not fully understand it myself"
"I have realized that some of you may have trouble understanding this," she wrote, adding, "In truth, I have had to live with it every day of my life, and even I do not fully understand it myself."
Two weeks after giving the letter to her boss, Stephens was fired.
Stephens and Bostock both took their former employers to court, charging that their dismissals were based on sex and thus violated Title VII of the 1964 Civil Rights Act, which bars discrimination "because of sex," or "on the basis of sex."
The owner of Harris Funeral Homes, Tom Rost, explained in a videotaped interview with his lawyers why he fired Stephens, saying that he was concerned about how the families of the deceased would react to Stephens who was, in Rost's words, "the face of the Harris Funeral Home."
Neither Clayton County officials nor their lawyers would comment about Bostock's firing.
A "common-sense argument"
But in their briefs, the lawyers in both cases argue that Title VII of the 1964 Civil Rights Act does not apply to sexual orientation or gender status at all. "Everyone understood in 1964 [when the Civil Rights Act passed] that sex meant biological sex," says John Bursch who is arguing on behalf of Harris Funeral Homes in the Supreme Court. That means that neither women nor men can be treated unequally in the workplace, he says, but that "just does not translate into other categories" such as sexual orientation or gender identity.
Supporting that argument are 15 states, including Texas, and its solicitor general, Kyle Hawkins. The "common sense" argument, he asserts, is that "sex is not the same as sexual orientation and not the same as gender identity."
But lawyers representing the fired workers counter that the Supreme Court over the last half-century has interpreted the law far more broadly than that. They note that the justices have applied the anti-discrimination statute to a variety of situations that Congress wasn't thinking about in 1964.
For example, "in 1964 you wouldn't find a single dictionary that defined the term 'sexual harassment' and yet the Supreme Court has held that Title VII [of the 1964 Civil Rights Act] prohibits sexual harassment of women" and "also sexual harassment of men," observes Stanford Law Professor Pamela Karlan.
Indeed, more than two decades ago, the Supreme Court ruled that even same-sex sexual harassment was illegal under the statute. Writing for a unanimous court, conservative Justice Antonin Scalia, said that while same-sex sexual harassment was "not the principal evil Congress was concerned with" in 1964, "statutory provisions often go beyond the principal evil to cover reasonably comparable evils." And, he said, "it is ultimately the provisions of our laws, rather than the principal concerns of our legislators by which we are governed."
Stanford's Karlan, who is arguing for the gay employees on Tuesday, will remind the justices of the court's very first sex discrimination case after enactment of the 1964 law: Phillips v. Martin Marietta Corporation. At issue was an employer's policy barring the hiring of women with young children.
The court ruled unanimously that the policy was illegal sex discrimination. Karlan argues that just as women with children are a subset of women covered by the anti-discrimination law, so too are gay, lesbian and bisexual employees.
"If it's sex discrimination to say you can't work for us if you are a woman and you have children at home, it's also sex discrimination to say you can't work for us because you're a woman and you have a wife at home," says Karlan.
Similarly, she maintains, "If you wouldn't fire a man for marrying a woman, but "you would fire a woman for marrying a woman, you've discriminated against the woman who works for you," Karlan maintains.
The transgender argument: politically difficult but analytically stark
The argument for transgender employees may be more politically difficult to sell. But it is arguably starker. It goes like this: If an employer hires a man and later fires the employee when the employee shows up as a woman, how is that not discrimination based on sex?
Lawyer Bursch will tell the justices that sexual orientation and gender status simply do not fit under the 1964 anti-discrimination formula. He warns that if the court were to rule against the employers in these cases, it would have ramifications beyond employment.
Could employment cases affect school sports?
"If we redefine the meaning of sex in federal law," he predicts, it would allow "biological men to identify as women and take women's places on sports teams." Bursch argues that has already happened in some places, with cisgender women losing out in medals to transgender women.
Federal law does indeed bar sex discrimination in sports programs at schools that get federal money. And the NCAA has developed regulations for when trans student-athletes may or may not participate. But as Stanford's Karlan observes, Title IX, known best for its impact in advancing women's sports, "is a different statute." And the regulations for education funding under Title IX "are different than the rules in the workplace" under Title VII.
Lawyers for the employers respond that Congress in 1964 simply did not anticipate the questions raised in these cases about the scope of Title VII and that Congress, not the courts, should be addressing these issues.
The case has drawn even more attention than anticipated, with dozens of friend-of-the-court briefs on each side. Siding with the employers is business groups that, for the most part, have some religious affiliation. But weighing in on the other side, in favor of protection for gay and trans employees, are 206 major corporations who employ over 7 million workers.
The Trump administration, reversing the position of the Obama administration, will argue in the Supreme Court against the LGBTQ employees.

September 26, 2019

The Supreme Court Guided By Principles of Justice or The Principles of Their Politics?



Three explosive cases are about to test whether conservative Supreme Court justices are seen to rule according to their professed legal principles—or their politics.

On October 8, just day two of the new term, the Court will hear arguments questioning if the federal law that prohibits workplace discrimination "because"—Title VII of the Civil Rights Act of 1964—applies to discrimination on the basis of sexual orientation and gender identity.

Millions of Americans' rights are at stake. About 4.5 percent of the adult U.S. population identifies as gay or lesbian—about 11.3 million people—according to a recent Gallup poll. Another 1.6 million are transgender, estimates a friend-of-the-court brief submitted by 82 scholars who study that population. Though 22 states have enacted their own laws barring discrimination on the basis of sexual orientation and/or gender identity, 28 have not, meaning that about 44 percent of the LGBTQ population relies solely on Title VII for workplace protection.

Interest in the case extends far beyond the LGBTQ community itself. More than 1,000 outside organizations and individuals have weighed in via more than 70 friend-of-the-court briefs. Among those supporting LGBTQ employees are more than 200 major corporations (including Apple, General Motors, IBM and State Farm), all the major unions, the American Psychological Association, the American Psychiatric Association, and the American Medical Association. The defendant employers, in turn, count among their supporters the Conference of Catholic Bishops, the National Association of Evangelicals and privacy groups whose members fear having to use the same bathrooms as members of the opposite biological sex. The Trump administration's Justice Department and the Equal Employment Opportunity Commission are also backing the employers in these cases, and U.S. Solicitor General Noel Francisco's office will take part in the oral arguments. 

At a time of profound skepticism about the Court's claims of nonpartisanship, its approach to these cases will be scrutinized for signs of political bias. The Republican Senate's blanket refusal to permit Democratic President Barack Obama to appoint any successor after the death of conservative Justice Antonin Scalia in February 2016 thrust the Court's partisan underpinnings into a harsh, undeniable light. 

The damage was exacerbated when, as the 2016 presidential election approached, several prominent Republican senators pledged to try to deny Democrat Hillary Clinton any Supreme Court appointments if she won. Just last month, four Democratic U.S. senators, led by Rhode Island's Sheldon Whitehouse, filed an extremely unusual friend-of-the-court brief in a gun-control case baldly asserting that "the Supreme Court is not well," that "the people know it," and hinting that the Court may need to be "restructured to reduce the influence of politics." As if that wasn't enough, a recent book excerpt published in The New York Times, corroborating accusations of collegiate sexual misconduct by now-Justice Brett Kavanaugh (which he categorically denied at the time), has revived the partisan rancor surrounding last year's confirmation hearings and led some Democratic presidential candidates to call for his impeachment.
Since Kavanaugh was sworn in last October, replacing swing-vote Justice Anthony Kennedy—a more moderate conservative and strong champion of LGBTQ rights—Republican-appointed conservatives have commanded a solid five-person majority on the nine-justice court. Looking just at the presumed ideological proclivities of the justices, the LGBTQ employees in these cases might be assumed to face an uphill battle.
Associate Justice Antonin Scalia
But cases aren't supposed to be decided by ideology. In cases like these, justices say they ground their decisions on the text of the statute in question and the precedents interpreting it. For at least 20 years, conservative jurists, led by the late Justice Antonin Scalia, have championed a doctrine of statutory interpretation called "textualism," which purports to provide an objective decision-making methodology that transcends ideology. It hinges on the plain meaning of a statute's words, rather than on the subjective intent or expectations of the legislators who enacted it.

Those rules now dictate an outcome in favor of the LGBTQ employees, they and their allies insist. "This is a moment of truth for textualists," Yale Law School professor William Eskridge Jr. said. "It's either put up or shut up." Eskridge co-authored a friend-of-the-court brief supporting the employees. "Either give Title VII's text and structure the effect its breadth demands or admit that textualism does not free statutory interpretation from ideology."

Four former U.S. solicitor generals sounded the same theme in their own brief, co-authored by constitutional scholar Laurence Tribe of Harvard Law School. "These cases are simpler than they seem," Tribe wrote. "Here, all that is necessary to decide the questions presented is a direct application of textualist principles to the plain language of Title VII." Tribe wrote on behalf of Walter Dellinger III (acting SG under Bill Clinton), Seth Waxman (SG under Clinton), Theodore Olson (SG under George W. Bush) and Neal Katyal (acting SG under Barack Obama).

The employers and their allies respond that the 1964 law was obviously never intended to address these forms of alleged discrimination, that Congress has repeatedly rebuffed invitations to amend the law to do so and that the employees are, therefore, effectively inviting the Court to rewrite that law by illegitimate judicial fiat. "Federal courts should not usurp Congress's authority by judicially amending the word 'sex' in federal nondiscrimination law to include 'transgender status,'" writes John J. Bursch, vice president of appellate advocacy for the conservative nonprofit Alliance Defending Freedom, which represents R.G. and G.R. Harris Funeral Homes, the employer accused of discriminating on the basis of gender identity in one of the three cases to be argued. (ADF describes itself as advocating "for the right of people to freely live out their faith.")

"For more than 40 years," assert Justice Department lawyers in their brief supporting the employers accused of discriminating against two gay employees, "Congress has repeatedly declined to pass bills adding sexual orientation to the list of protected traits in Title VII." ("What Congress hasn't done shouldn't affect the interpretation of the statute," responds American Civil Liberties Union staff attorney Gabriel Arkles. "It should be interpreted for what it says." The ACLU is co-counsel for two of the three plaintiffs in these cases, Donald Zarda and Aimee Stephens.)

The Softball Player, the Skydiver, and the Funeral Director

Courts do not decide legal issues in the abstract; they address questions presented to them in specific lawsuits. So before diving into the evolution of the law and the parties' particular arguments, it is crucial to examine the facts of the particular cases before the Court.

There are two involving sexual orientation (those of Zarda and Gerald Bostock), which have been consolidated and will be argued together first, and one involving gender identity (that of Stephens), which will be argued separately immediately afterward.

Skydiving instructor Donald Zarda.
In 2003, Gerald Lynn Bostock took a job as a child welfare services coordinator in the Clayton County juvenile court system in Jonesboro, Georgia, near Atlanta. For ten years he compiled an outstanding record, his attorneys claim. In January 2013, however, he started playing softball in a gay association known as the Hotlanta League. This drew criticism, he claims, from people influential with his employer, Clayton County. Three months later the county audited Bostock's unit and, that June, he was fired for "conduct unbecoming of a county employee." The county now claims that Bostock had mismanaged funds. Bostock, now 55, denies the accusation and denounces both the audit and its findings as phony excuses manufactured to hide the real reason for his termination: bias against his homosexuality. Bostock is appealing a ruling of the U.S. Court of Appeals for the Eleventh Circuit, in Atlanta, which affirmed the pretrial dismissal of his suit on the grounds that Title VII did not bar discrimination on the basis of sexual orientation.

Meanwhile, in 2010, Donald Zarda was a skydiving instructor for Altitude Express in Calverton, New York, on Long Island. He often led "tandem" jumps, where he was strapped closely to the customer. That June he was fired for, he was told, having shared "inappropriate information" with a customer "regarding his personal life." Zarda maintained that he told a woman client he was gay in order to dispel the awkwardness of the tight physical contact. Altitude asserts that, after the jump, the woman complained of being "inappropriately touched" by Zarda, and that only then did Zarda mention his sexual orientation. Zarda sued that September. In February 2018, the Second Circuit Court of Appeals in New York ruled that his case could go forward to trial because Title VII prohibits discrimination based on sexual orientation. (In October 2014, Zarda, then 44, died in Switzerland while engaged in the extreme sport known as BASE-jumping—diving from a cliff wearing a wingsuit. His executors, however, have continued to press his suit.)

Finally, there is Aimee Stephens

Transgender funeral director Aimee Stephens.CHARLES WILLIAM KELLY/ACLU

Then known as Anthony, she was hired as a funeral director in Garden City, Michigan, near Detroit, in October 2007. The employer, R.G. and G.R. Harris Funeral Homes, was owned by Tom Rost, a "devout Christian," according to the employer's attorneys. In late July 2013, while on vacation, Stephens wrote Rost explaining that she had "a gender identity disorder that [she] had struggled with [her] entire life," and had, with the support of her wife, decided to transition to female identity in anticipation of eventual reassignment surgery. When she returned to work, she wrote, she would be using the name Aimee and dressing in a skirt suit, in accordance with Harris Homes' dress code for women. Rost fired her two weeks later, before her scheduled return, explaining that it was "wrong for a biological male to deny his sex by dressing as a woman or for a biological female to deny her sex by dressing as a man," Stephens alleges. Rost also said that customers "don't need some type of a distraction" and that her "continued employment would negate that."

Initially, during the Obama administration, the EEOC took Stephens' case and sued Harris Homes on her behalf. But after Donald Trump took office, the EEOC reversed its position, and it now supports Harris Homes. In May 2018, the U.S. Court of Appeals for the Sixth Circuit, in Detroit, ruled that Stephens' case could go to trial because, in its view, Title VII does bar discrimination based on gender identity.

The Evolving History of the Law

There is no dispute that most of the legislators who wrote and voted for Title VII never envisioned targeting discrimination on the basis of sexual orientation or gender identity. In 1964, most states still criminalized homosexual conduct and the term "gender identity" was largely unknown. In the 1970s a consensus arose among the federal circuit courts that Title VII (or other, similarly worded federal anti-discrimination statutes) did not reach sexual orientation cases. Courts also rebuffed the tiny number of gender identity cases that arose.

By the early 2000s, however, the legal landscape had changed. Judges began to reassess earlier assumptions in light of, primarily, two intervening U.S. Supreme Court rulings. In 1989, in the landmark Price Waterhouse v. Hopkins case, the Court decided that Title VII barred discrimination based on sexual stereotyping. There, in denying a promotion to Ida Hopkins, partners at the accounting firm had described her as too "macho" and "aggressive," and had suggested she should learn to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." Courts began to consider whether sexual orientation and gender identity cases were simply extreme cases of sexual stereotyping: inappropriately assuming that all men should date women, for instance, or that all people assigned female sexual characteristics at birth should identify as women for the rest of their lives.

The other key, intervening Supreme Court precedent was a unanimous ruling in 1998 authored by Justice Scalia. It was as much a victory for textualism as for Title VII plaintiffs. In that case, Oncale v. Sundowner Offshore Services, Inc., a male roustabout on an oil rig complained of severe sexual harassment from other males on the rig, including supervisors. The Court ruled that Title VII barred same-sex sexual harassment, even though such practices were probably not envisioned by anyone in Congress who voted for the law in 1964. "It is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed," Scalia wrote. Later that year, in another unanimous ruling involving a different statute, Scalia re-enforced his textualist approach: "The fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth."

In light of these precedents, judges began to see Title VII as reaching more broadly than previously assumed. In the early 2000s, three federal appeals courts allowed transgender plaintiffs to sue based on sexual stereotyping, without deciding whether discrimination based on gender identity itself was forbidden. In 2012, in an administrative case, the EEOC ruled that Title VII did, in fact, protect transgender plaintiffs. In late 2014, Attorney General Eric Holder instructed Justice Department staff to enforce that interpretation as well. In July 2015, the EEOC decided that Title VII also banned discrimination on the basis of sexual orientation, reversing its earlier position. Then, in April 2017, the U.S. Court of Appeals for the Seventh Circuit, in Chicago, became the first federal appeals court to rule that Title VII barred discrimination against homosexuals, overruling an earlier precedent. It found that bias against the lesbian employee in that case—stemming from the stereotype that women should date only men—"represents the ultimate case of failure to conform to the female stereotype."

"But for" and "Stereotyping"

The LGBTQ employees in the three cases now before the Court make two main "textualist" arguments. One is the stereotyping argument just described—that discrimination against people attracted to the same sex amounts to the "ultimate" form of sexual stereotyping. The other is known as the "but for" argument. The Supreme Court has repeatedly ruled in the past that an employer discriminates "because of"—the literal text of Title VII—when it treats an employee "in a manner which, but for that person's sex, would be different." Lawyers for the LGBTQ employees say they obviously meet that test. As lawyers for fired Clayton County employee Bostock put it: "When an employer fires a female employee because she is a lesbian—i.e., because she is a woman who is sexually attracted to other women—the employer has treated that female employee differently than it would treat a male employee who was sexually attracted to women." Thus, but for her sex, she wouldn't have been fired. 

Similarly, attorneys for Aimee Stephens, the transgender funeral director, contend: "Harris Homes would not have fired her for living openly as a woman if she had been assigned female sex at birth." Thus, but for her biological sex, she wouldn't have been fired.

The employers respond that both arguments are wrongheaded. The arguments lose sight, they claim, of what was the obvious central goal of Title VII: that an employer did not favor one sex over the other. So long as an employer discriminates against all homosexuals, for instance—i.e., both gay men and lesbians—the employer is not favoring either sex over the other. Similarly, so long as employers discriminate against all transgender employees—those transitioning to men and those transitioning to women—they are not favoring either sex.

Under this view, the LGBTQ plaintiffs are guilty of using a "faulty comparator analysis," to use the technical term used by the employers' attorneys. "[Gay skydiver Zarda] is wrong to compare himself to a heterosexual woman," write attorneys for Zarda's former employer. "Zarda (a man attracted to the same sex) must be compared to a lesbian woman (a woman attracted to the same sex). Because employers that base decisions on employees' sexual attraction would treat both Zarda and the lesbian comparator the same way, the comparator analysis reveals no sex discrimination." Similarly, they argue, "the alleged stereotype in this case—the belief that people should be attracted to the opposite sex—is not a sex-specific stereotype and does not treat employees of one sex worse than the other sex." 

It is hard to look at these cases without contemplating what might have been. Had President Obama been permitted to fill the Supreme Court seat vacated by the death of Scalia in 2016 with D.C. Court of Appeals Judge Merrick Garland, the U.S. might be a different place. The liberal-leaning faction of the Court would now own five seats, and the employees' chances of prevailing in these cases would be strong. But Senate Majority Leader Mitch McConnell famously refused to let Obama have any Supreme Court appointment during the last 11 months of his final term. (Obama won his second term with 51 percent of the popular vote.) "Let's let the American people decide," McConnell said at the time, alluding to the upcoming election.

The people then voted for Hillary Clinton by a margin of 2.8 million votes—48 percent to Donald Trump's 46 percent. But Trump won the electoral college and became president. Trump replaced Scalia with Justice Neil Gorsuch in April 2017.

Even then, the employees in these cases might still have been favored to prevail. At that point, Justice Kennedy was still on the bench, and he had authored many of the trail-blazing decisions expanding LGBTQ rights, including Obergefell v. Hodges in June 2015, concluding that same-sex couples had a federal constitutional right to marry. (Kennedy had been appointed by President Ronald Reagan, who had won 58.8 percent of the popular vote.) But Kennedy resigned in June 2018 and Trump nominated staunch conservative Kavanaugh, approved by the Senate on October 2018.

With Kennedy out and Kavanaugh in, some observers see the LGBTQ employees' prospects in these cases as bleak. Where will they find a fifth vote? Zarda's co-counsel, Gregory Antollino of New York, professes to "feel confident" that the employees' textualist arguments will carry the day with at least one member of the conservative faction. "We believe we can get Kavanaugh, Gorsuch, or [Chief Justice John Roberts, Jr.]" he claims.

But if Antollino is wrong, the chief justice will have a hard time softening the blow to the Court's perceived legitimacy. In the past, he has striven mightily to moderate the Court's rightward shift, in an apparent effort to preserve the institution's aura of being above the political fray. He has crafted miraculous compromises where few had imagined any was possible—most famously when he agreed with conservatives that the Affordable Care Act violated the Constitution's Commerce Clause, yet joined liberals to uphold it under the Taxation Clause.

It's often said that, among the three branches of government, the Supreme Court is unique in that its legitimacy depends on its ability to hold itself above the political fray. Its members are not elected; as a body, the Court has no power to enforce its own rulings, so it is entirely dependent on the goodwill of the other branches to carry out its proclamations. ("It has no influence over either the sword or the purse," as Alexander Hamilton famously put it in Federalist No. 78.) Its legitimacy, therefore, hinges on its ability to persuade us, through force of reason, that its decisions flow from neutral principles and precedents. Justice Scalia spent much of his judicial career trying to craft and enshrine conservative rules of interpretation that he believed would enable judges to do just that.

In this case, the justices may need to decide whether they want to be conservatives in the jurisprudential sense, or in the political one.
→ Roger Parloff is a regular contributor to Newsweek and Yahoo Finance. He has also been published in The New York Times, ProPublica, New York Magazine, and For 13 years he was a staff writer at Fortune Magazine

September 25, 2019

Can Someone Be Fired For Being Gay? Arguments on The Court Without The Old Guard

 The Supreme Court has delivered a remarkable series of victories to the gay rights movement over the last two decades, culminating in a ruling that established a constitutional right to same-sex marriage. But in more than half the states, someone can still be fired for being gay.

Early in its new term, on Oct. 8, the court will consider whether an existing federal law, Title VII of the Civil Rights Act of 1964, guarantees nationwide protection from workplace discrimination to gay and transgender people, even in states that offer no protections right now.

It will be the court’s first case on L.G.B.T. rights since the retirement last year of Justice Anthony M. Kennedy, who wrote the majority opinions in all four of the court’s major gay-rights decisions. And without Justice Kennedy, who joined four liberals in the 5-to-4 ruling in the marriage case, the workers who sued their employers in the three cases before the court may face an uphill fight.

“Now that we don’t have Kennedy on the court, it would be a stretch to find a fifth vote in favor of any of these claims that are coming to the court,” said Katherine Franke, a law professor at Columbia and the author of “Wedlocked: The Perils of Marriage Equality.”  

She added that lawyers working to expand gay rights might have focused too narrowly on the right to marry. “The gay rights movement became the marriage rights movement,” she said, “and we lost sight of the larger dynamics and structures of homophobia.”

Other experts said the court should have little trouble ruling for the plaintiffs.

“Lesbian, gay, bisexual and transgender Americans continue to face widespread job discrimination because of their same-sex attraction or sex identities,” said William N. Eskridge Jr., a law professor at Yale and the author of an article in The Yale Law Journal on Title VII’s statutory history. “If the justices take seriously the text of Title VII and their own precedents, L.G.B.T. Americans will enjoy the same job protections as other groups.”

The Supreme Court’s earlier gay rights rulings were grounded in constitutional law. Romer v. Evans, in 1996, struck down a Colorado constitutional amendment that had banned laws protecting gay men and lesbians. Lawrence v. Texas, in 2003, struck down laws making gay sex a crime. United States v. Windsor, in 2013, overturned a ban on federal benefits for married same-sex couples.

And Obergefell v. Hodges, in 2015, struck down state bans on same-sex marriage, ruling that the Constitution guarantees a right to such unions.

The new cases, by contrast, concern statutory interpretation, not constitutional law.

The question for the justices is whether the landmark 1964 law’s prohibition of sex discrimination encompasses discrimination based on sexual orientation or gender identity. Lawyers for the gay and transgender plaintiffs say it does. Lawyers for the defendants and the Trump administration, which has filed briefs supporting the employers, say it does not. 

The common understanding of sex discrimination in 1964 was bias against women or men, Solicitor General Noel J. Francisco wrote. It did not encompass discrimination based on sexual orientation and gender identity.

“The ordinary meaning of ‘sex’ is biologically male or female,” he wrote. “It does not include sexual orientation.”

image with the retirement of Justice Anthony M. Kennedy, who wrote the majority opinion in all four of the Supreme Court’s major gay-rights decisions, gay rights advocates may face an uphill battle at the court.

[With the retirement of Justice Anthony M. Kennedy, who wrote the majority opinion in all four of the Supreme Court’s major gay-rights decisions, gay rights advocates may face an uphill battle at the court.CreditAl Drago/The New York Times]

In response, lawyers for one of the plaintiffs, Gerald Bostock, wrote that “a person’s sexual orientation is a sex-based classification because it cannot be defined without reference to his sex.”

Mr. Bostock, who spent a decade building a government program to help neglected and abused children in Clayton County, Ga., just south of Atlanta, said his story illustrated the gaps in protection for gay workers.

“Everything was going amazingly,” he said in an interview in his home. “Then I decided to join a gay recreational softball league.”

He played catcher and first base for his team, the Honey Badgers, in the Hotlanta Softball League. A few months later, the county fired him for “conduct unbecoming a county employee.” 

Mr. Bostock’s case is at an early stage, and the reason for his dismissal is contested. His former employer has said it fired him after an audit indicated he had misused county funds, which Mr. Bostock denies.

In an email, Jack R. Hancock, a lawyer for the county, said, “Mr. Bostock’s sexual orientation had nothing to do with his termination.”

The justices will decide whether Mr. Bostock is entitled to try to make his case to a jury. The county insists that Title VII allows it to fire workers for being gay, meaning that the case should be dismissed at the outset.

“When Congress prohibited sex discrimination in employment approximately 55 years ago,” Mr. Hancock wrote in a brief, “it did not simultaneously prohibit discrimination on the basis of sexual orientation.”

Mr. Bostock, 55, grew up in southern Georgia, where he said he “learned the three F’s very quickly: family, faith and football.” But he found his own calling, he said, when he was assigned to recruit volunteers to represent children from troubled homes in juvenile court.

“It was my passion,” he said. “My employer loved the job I was doing. I got favorable performance reviews. We had great success.”

Things took a turn, he said, when he became more open about his sexual orientation.

“When I joined the gay softball league in January of 2013, that’s when my life changed,” he said. “Within months of that, there were negative comments about my sexual orientation.” In particular, he said, he was criticized for recruiting volunteers for the program from the gay community in Atlanta. 

Mr. Bostock said he would attend the Supreme Court arguments in his case, Bostock v. Clayton County, No. 17-1618. “I hope they give me the right to have my day in court, to come back to Georgia and clear my name and have the truth come out,” he said. 

James Obergefell, center, the plaintiff in the same-sex marriage case Obergefell v. Hodges that resulted in a constitutional right to same-sex marriage, leaving the Supreme Court after the ruling in 2015.CreditDoug Mills/The New York Times

The justices will also hear a companion case, Altitude Express v. Zarda, No. 17-1623. It was brought by a skydiving instructor, Donald Zarda, who said he was fired because he was gay. His dismissal followed a complaint from a female customer who had expressed concerns about being strapped to Mr. Zarda during a tandem dive. Mr. Zarda, hoping to reassure the customer, told her that he was “100 percent gay.”

Mr. Zarda sued under Title VII and lost the initial rounds. He died in a 2014 skydiving accident, and his estate pursued his case. His lawyers told the justices that the case could be decided “without ever using the term ‘sexual orientation’ or ‘gay.’”

“The claim could accurately be framed entirely in terms of sex and nothing else: Zarda was fired for being a man attracted to men,” they wrote. “That is sex discrimination pure and simple.”

Most federal appeals courts have interpreted Title VII to exclude sexual orientation discrimination. But two of them, in New York and Chicago, have ruled that discrimination against gay men and lesbians is a form of sex discrimination.

Last year, a divided 13-judge panel of the United States Court of Appeals for the Second Circuit, in New York, allowed Mr. Zarda’s lawsuit to proceed. Writing for the majority, Chief Judge Robert A. Katzmann concluded that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” 

Mr. Hancock, in his brief for Clayton County in Mr. Bostock’s case, urged the justices to be wary of what he called a novel interpretation of an old law. “One would expect that, if Congress intended to enact a statute of such magnitude — socially, culturally, politically and policy-wise — as one prohibiting employment discrimination on the basis of sexual orientation,” he wrote, “Congress specifically would have so stated in the text of Title VII.”

The Supreme Court has ruled that it is race discrimination to fire a worker for being a member of an interracial couple. Lawyers for Mr. Zarda said the same principle should apply to same-sex couples.

“Just as firing a white employee for being married to an African-American person constitutes discrimination because of race,” they wrote, “so firing a male employee for being married to another man constitutes sex discrimination.”

Mr. Francisco, in his brief for the administration, wrote that the analogy did not hold.

“An employer who refuses to hire an applicant in an interracial relationship would rightly be branded a racist,” he wrote. “But no ordinary speaker of English would call an employer who refuses to hire an applicant in a same-sex relationship a sexist.”

At the bottom, the cases 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 they were doing. 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 principal concerns of our legislators by which we are governed.”

If nothing else, Professor Franke said, the cases will explore divisive and difficult issues. “Sex,” she said, “is a confounding term in our culture, in our language and certainly in the law.”

by Adam Liptak on Twitter: @adamliptak.

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