The right to be free and gay
Letter to the Editor | Tuesday, October 15, 2019
Let me start by stating that I immediately hold a deep respect for anyone who takes an interest in the language of the laws that govern our nation and how the Supreme Court then interprets this language into the laws’ application to the daily lives of Americans. So my interest was sparked by the column covering the Supreme Court’s upcoming ruling on discrimination based on sexual orientation. However, I will admit that I was disappointed by the ultimate legal conclusions reached in that opinion piece, “LGBT discrimination is legal even if it’s wrong.”
I agree with the beginning point raised that “the Court does not decide policy,” as well as the fact that “Congress has never opted to explicitly include sexual orientation and gender identity in discrimination protection.” Title VII was written in 1964, a time in which openly gay people were deemed “unsuitable for Federal employment.” In complement to this role of the legislature, it is “emphatically the duty of the Judicial Department to say what the law is,” and if the Supreme Court ultimately decides to expand the applications of Title VII to apply to discrimination based on sexual orientation, it certainly would not dismantle the integrity of the legislative branch. If Congress does not agree with the Court’s interpretation, it is within its power to change the law.
In his opinion for Oncale v. Sundowner Offshore Services, Justice Antonin Scalia, a strict textualist, said it best when it comes to expanding the interpretation of Title VII in certain cases that were not necessarily foreseen by the U.S. Congress at the time: “Male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. 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.”
Next, we move into this hypothetical scenario of deciding to fire an individual based on a simple list of resume information as well as a sudden knowledge of the person’s sexual orientation but not gender. This no longer counts as sexual discrimination based on sex and thus moves into the gray area of discrimination based on sexual orientation, which is never explicitly prohibited by Title VII. However, Justice Elena Kagan rebuts that this scenario works to weaken the argument of the employers in question. Gerald Bostock and Donald Zarda were let go for being men who were attracted to men. Presumably, though, their employer would permit women to be attracted to men. This is fundamental sex discrimination.
Also, pointing to the Court’s prior case of Price Waterhouse v. Hopkins only bolsters the argument that discrimination based on sexual orientation is illegal rather than weakening it. In this 1988 case against the major audit and consulting firm, the plurality opinion determined that Ann Hopkins could not be fired or denied a promotion for being insufficiently feminine. In the current case of R.G. & G.R. Harris Funeral Homes v. the Equal Employment Opportunity Commission, the boss’ rule that men must dress and act one way and women must dress and act a different way is a form of sexual stereotyping and thus sexual discrimination, according to this precedent from Price Waterhouse v. Hopkins. How, then, can Aimee Stephens be discriminated against for not complying with her employer’s gender standards that “God commands” him to enforce?
Now, I’m a proud moderate conservative, and I have continually grown more exhausted by the divisive rhetoric of the current political environment. At the core of my beliefs is a firm trust that our most fundamental rights are those of life, liberty and the pursuit of happiness. Thus, I grow tired of any philosophical, legal or religious loophole being exploited to deny members of the LGBTQ+ community their basic rights to be free and gay human beings (yes, I mean both meanings of the word “gay” here). Ultimately, I hope that one day, the United States learns from the mistakes of its past and firmly stands against discrimination in any form.
The views expressed in this Letter to the Editor are those of the author and not necessarily those of The Observer.