//  10/7/19  //  Commentary

When the Supreme Court hears oral argument in Bostock v. Clayton County tomorrow, the question on everyone’s mind will be whether Title VII, a federal law that prohibits employer discrimination “because of sex,” also forbids discrimination because of sexual orientation.  Many onlookers suspect that this case may come out along predictable partisan lines, with five conservative Justices likely to rule that sexual orientation discrimination is simply different from sex discrimination, such that the former is allowed even as the latter is forbidden.

The conservative Justices should be careful what they wish for.  One key argument they would need to reject in order to rule against LGBT employees is an argument based on an analogy to Loving v. Virginia, a landmark Supreme Court ruling that invalidated laws punishing interracial marriage as a violation of the Equal Protection Clause.  Following that principle, every federal court of appeals to hear the question has agreed that when an employer fires an employee (who is, for example, black) because that employee is married to a person of a different race (for example, a person who is white), that action violates Title VII’s prohibition against discrimination “because of race.”  After all, if the employer would have retained the same employee had he only been the same race as his spouse—that is, white—then the firing was clearly “because of” the employee’s race. 

Yet the same logic should hold for an employee who is fired because of his association with a partner of the same sex.  If the employer would have retained him had he only been a different sex (namely, the opposite sex of his partner), then the employer’s action was also “because of” the employee’s sex--precisely what Title VII forbids.

The employers in this case argue that race is different.  Discrimination against an employee for his interracial marriage, they argue, is based on racism, whereas discrimination against an employee for his sexual orientation is not based on “sexism.”  So Title VII forbids only the former.  But if the conservative Justices take this position, they should be aware of the implications for people of faith across the country.

Consider the following hypothetical.  An employer discovers that an employee is Catholic.  Thankfully, Title VII forbids the employer to fire that employee simply because of his faith; doing so would violate the law’s prohibition against discrimination “because of religion.”  After all, like race and sex, a person’s religion bears no relationship to their ability to do a job—which is precisely why Congress was right to forbid it as a ground of employer discrimination.

But now suppose the Catholic employee happens to be married to a Protestant partner.  Such interfaith marriages are quite common—roughly three of every ten married Americans is married to a spouse of a different faith. 

So may the same employer now fire the very same Catholic employee on the ground that the employee has married a person of a different religion?  That choice, the employer might argue, is no longer discrimination based on the employee’s own religion, but rather discrimination based on the employee’s religious orientation—the fact that the employee has chosen to marry a person of a different faith.  And if the Supreme Court holds that it is okay to fire a worker because of his sexual orientation, it is hard to see why discrimination against people of interfaith marriages should come out any different.  The result is that an employer would be free to evade Title VII’s prohibition against religious discrimination simply by pointing to his association with a person of a different religion.

That cannot be right.  Firing an employee in an interfaith marriage is discrimination based on the employee’s religion: had the employee only subscribed to a different faith (namely, the faith of his spouse), he would have kept his job.  But again, the same is true for sexual orientation discrimination: had a gay employee only been a different sex (i.e., a woman attracted to a man instead of a man attracted to a man), he too would have kept his job. It is no answer to say that the employer would fire any employee (male or female) who married someone of a different sex, just as it is no answer to say that the employer would fire any employee (whatever their religion) who married someone of a different religion. In both cases, and in the words of the statute, the employee has suffered discrimination because of “such individual’s” sex or religion. 

Supreme Court Justices know that the opinions they write have wide-ranging effects well beyond the facts of any particular case.  This is one such case.  Permitting employers to discriminate against LGBT employees would open to the door to the same kind of discrimination against millions of Americans of faith.  For a multitude of reasons, let us all hope the Court slams that door shut.

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The Dreamers’ victory has been celebrated as a sign that the Court is above partisanship and willing to serve as a check on executive branch abuses. But the price of that victory was a defeat for the Constitution’s guarantee of equal protection.

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Vanderbilt Law School

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San Francisco

Charlie Gerstein

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6/16/20  //  Commentary

Following the Supreme Court's decision in Bostock, it's worth asking: Why has the law been so successful at improving the lives of gay people but much less successful at improving the lives of people of color?