The U.S. Supreme Court today (June 15) ruled that employers may not discriminate against LGBTQ employees on account of their unconventional lifestyles. The 6-3 ruling appears to extend worker protections to a category that was specifically omitted in the landmark 1964 Civil Rights Act. The majority decision was written by Associate Justice Neil Gorsuch, President Donald Trump’s first nominee to the court. He was joined by Chief Justice John Roberts and the court’s four liberal justices. Associate Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh dissented.
Gorsuch wrote, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
Associate Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh vigorously dissented, saying the majority had not ruled on existing law, but actually had created new law by judicial fiat.
Alito, writing more than 100 pages in dissent for himself and Thomas, accused the court’s majority of writing legislation, not law.
“The question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed,” Alito said. “The question is whether Congress did that in 1964. It indisputably did not.”
Writing separately, Kavanaugh said simply: “We are judges, not members of Congress. Instead of a hard-earned victory won through the democratic process, today’s victory is brought about by judicial dictate – judges latching on to a novel form of living literalism to rewrite ordinary meaning and remake American law,” he wrote. “Under the Constitution and laws of the United States, this court is the wrong body to change American law in that way.”
Federal appeals courts have been split on the question since 2017, when the U.S. Court of Appeals for the 7th Circuit became the first to rule that gay men and lesbians should be covered by the decades-old federal civil rights law.
The U.S. Court of Appeals for the 2nd Circuit ruled for Zarda in 2018, but the 11th Circuit, based in Atlanta, ruled against Bostock. The 6th Circuit, based in Cincinnati, ruled for Stephens.
Congress has debated the issue for decades but “repeatedly declined to pass bills adding sexual orientation to the list of protected traits” under the law, the Justice Department told the justices. The Democratic-controlled House passed the Equality Act last year, but the Republican-controlled Senate has not considered it.