Most of you will recall the fight in numerous political elections just a few years ago over the issue of whether same-sex couples have the right to marry. The Supreme Court put the issue to rest through a decision in 2015, holding that the 14th Amendment of the U.S. Constitution provides the fundamental right and requires all 50 states to recognize same-sex marriages on the same terms as opposite-sex marriages. While that decision was certainly pivotal and critical to the advancement of LGBT rights, it did not end the battle.
The question of whether federal laws such as Title VII of the Civil Rights Act prohibit discrimination on the basis of sexual orientation or gender identity by employers remains unsettled. Although many states, including Minnesota, have enacted laws prohibiting such discrimination, many have not, leaving federal law as the only existing source for protection in such jurisdictions. One of the likely reasons why the confirmation hearing for recently appointed Justice Brett Kavanaugh to the Supreme Court was so hotly contested is that several decisions regarding this question are pending review by the court. With the departure of Justice Anthony Kennedy, who authored many of the court’s pro-LGBT rights decisions, and the additions of conservative Justices Kavanaugh and Neil Gorsuch to the court, the potential for a halt to the advancement of LGBT rights is real.
For example, two cases involving gay rights in employment have been presented to the Supreme Court for potential review. In cases from the Second Circuit Court of Appeals and the 11th Circuit, the plaintiffs are gay and allege their employers discriminated against them on the basis of sexual orientation. In both cases, the plaintiffs argued that such discrimination is illegal under Title VII, which prohibits discrimination on the basis of “sex” but does not include the term “sexual orientation.” Their basic argument, in essence, is that discrimination on the basis of sexual orientation is “sex” discrimination because an employer cannot know if an employee is gay without knowing their sex and that of their partner’s. The 11th Circuit ruled for the plaintiff, holding Title VII prohibits such discrimination. The Second Circuit, however, ruled against the plaintiff on the same question. The losing parties in both cases sought review by the Supreme Court, which has not yet decided whether it will review them. And in a decision from the Sixth Circuit Court of Appeals, the court has been asked to decide whether Title VII similarly prohibits discrimination on the basis of gender identity, such as for employees who are transgender (the Sixth Circuit held it does, despite opposition from the Trump administration).
Another pivotal issue for LGBT rights is the question of whether an employer’s religious or other First Amendment rights can somehow override laws prohibiting discrimination on the basis of sexual orientation or gender identity. You will recall the well-publicized case involving a Colorado bakery which was fined for refusing to make a wedding cake for a same-sex couple in violation of Colorado’s law prohibiting places of public accommodation from discriminating on the basis of sexual orientation. The Supreme Court ultimately avoided deciding the question of whether the bakery’s owner, who claimed his religion did not allow him to make or sell the cake, had the religious and free speech rights under the First Amendment to refuse service to the couple. Instead, the court reversed the fine on the narrow basis that the state commission had not employed religious neutrality while investigating and deciding the case.
In a pending case out of Oregon, the primary question of First Amendment rights, at issue in the Colorado bakery case, is back again. There, a religious couple who owns a bakery contends the First Amendment gives them the right to discriminate against gay people, whether in connection with sales to customers or the hiring of employees, because homosexuality is against their religion. The Oregon state courts rejected their contention, but the couple has requested review by the Supreme Court. If the Supreme Court recognizes such a right under the First Amendment, employers across the country could utilize that defense in sexual orientation and gender identity discrimination cases under both state and federal anti-discrimination laws.
It remains to be seen whether the Supreme Court will review any of these cases and, if it does, how it will rule with the addition of the two recent nominees from President Trump.