Most summaries of the Supreme Court arguments on the three Title VII cases on sexual orientation/gender identity reflect that the arguments were a rather convoluted mess. While I have a hunch that we are heading toward a 5-4 decision with the judges splitting on partisan lines, there was enough in the argument to blur the lines as justices seemed to depart from their traditional stances.
One of the big debate in legal fields over the past 100 years is about the theory of “legal realism.” In oversimplified terms, legal realism contends that judges are just politicians wearing robes and that they decide cases based solely on their policy preferences. The alternative theory, as expounded by Chief Justice Roberts during his confirmation hearing, is that judges are just umpires calling the balls and strikes based on rules drawn up by others. In this latter school of thought, judges are trying to interpret the meaning of texts and should not be concerned about the real world consequences of their decisions.
Much of the debate in the ball and strikes theory is about the proper method of interpreting legal texts. In recent years, conservatives have been big on textualism. Textualism posits that words in a text have meaning. If some of the terms are ambiguous, there are rules that can be applied to clarify the text (e.g., by looking at the term in the context of that statute and how that term is used in other similar statutes). The alternative to textualism is often a reference to legislative history, but — as many statutes were written during a time when liberals had the upper hand in Congress — legislative history (primarily the reports summarizing what a bill was intended to achieve) often supported a more liberal result. So conservative judges argued that those reports were never actually approved by Congress and that judges should only look at what Congress actually passed — the statutory language itself.
The two arguments on Title VII often saw these traditional lines reversed with the conservative justices parading “horrible” consequences if courts were to ban discrimination based on gender identity or sexual orientation. Similarly, it was conservatives who seemed to want to figure out what the members of Congress who voted for Title VII actually intended to bar. (Hint: If you go by legislative intent, Title VII does not even bar discrimination against women as the legislators who added “sex” to Title VII intended the amendment to be a poison pill that would bring down the entire bill.) On the other hand, the liberal most often portrayed these cases as involving a logical and straightforward extension of established rules that would apply if the employer sought to punish an employee for changing religion or having an interracial or interreligious marriage.
From a practical standpoint, even though the two arguments were separate and distinct, the questions asked reveal that the justices are having difficulty treating “sexual orientation” and “gender identity” as separate concepts. Similarly, especially for the gender identity case, these cases are significantly influenced by the cases over the past several years involving students wanting to use the bathroom of the gender that they identify with rather than their birth gender. Even though the “bathroom” issue is not directly relevant to these cases, the potential impact of a ruling on bathrooms was mentioned over twenty times during the two arguments.
Because this case involves statutory interpretation (in other words figuring out whether Title VII of the Civil Rights Act applies to this type of discrimination), the decision by the Supreme Court — which will likely come between March and June of 2020 — will merely establish the starting point for the next Congress. If the plaintiffs win, then conservatives will be seeking to have Congress roll back these protections. If the employers win, then the attempt to amend Title VII (and its state equivalents) to specifically bar discrimination on the basis of sexual orientation will continue.
