JUSTICES APPEAR DIVIDED ON LGBTQ WORKPLACE RIGHTS | Questions Fundamental To Criminal Law Before SCOTUS Yesterday
October 8, 2019
TWO DAYS IN
|Before the Supreme Court today were a set of cases testing whether federal discrimination law that bars sex discrimination in employment applies to LGBTQ employees — no small question in what has been one of the most anticipated issues of the term. Keep in mind: we’re only on Day 2. GERALD BOSTOCK claims he was fired from his job as a social worker after he became more open about being gay, and DONALD ZARDA said he was fired as a skydiving instructor after joking with a female client that he was gay. Zarda passed away in 2014. Their cases were combined for the Supreme Court’s review. Attorney Pamela S. Karlan representing the two gay employees told the court that firing a man for marrying another man, but not a woman for marrying a man, was clearly sex discrimination and covered by the law. However, the lawyer for the employers argued that sex and sexual orientation are independent and distinct characteristics.
DEFINING "SEX"
|The transgender case involves AIMEE STEPHENS, who worked for years at a Michigan funeral home before being fired after informing the owners and colleagues of her gender transition. ACLU legal director David D. Cole represents Stephens and said Stephens’s firing fit squarely within the law’s wording “because of sex.” She was fired, he said, “because she had a male sex assigned at birth.” John J. Bursch of the Alliance Defending Freedom, representing the funeral home, said the law does not require employers to treat men as women. It only means that one sex may not receive better or worse treatment than the other. For 50 years, courts read Title VII of the Civil Rights Act of 1964 to mean basically that, not that discrimination on the basis of sex included LGBTQ individuals.
WHEN TO STEP IN
|During the combined arguments regarding LGBTQ workplace rights the justices appeared divided. The liberal justices seemed adamantly against the firing of LGBTQ individuals, with JUSTICE SONIA SOTOMAYOR at one point calling the practice “invidious behavior against groups.” She also said, “At what point does a court continue to permit discrimination” rather than step in. However, some of the conservative justices appeared skeptical of the arguments from lawyers representing the LGBTQ workers. JUSTICE SAMUEL ALITO said if the court decided to update the statute, it might as well “just be a legislature.” JUSTICE BRETT KAVANAUGH asked only a few questions throughout the two hours of argument.
DIVIDED WE FALL
|Anna North with Vox reports that the Supreme Court’s cases today on rights for the LGBTQ community will affect all Americans. Chase Strangio with the ACLU represents AIMEE STEPHENS who says she was fired from her job at a funeral home because her boss disapproved of the fact that she is transgender. Strangio told North that the high court’s decision in these cases “will be a declarative and transformative statement of our legal rights under federal law.” Strangio also added, “If you start carving out and narrowing the scope of federal civil rights protections, that’s going to hurt you too. If we truly are pitted against each other, then we all lose out in the end.”
I'M NOT CRAZY, YOU'RE CRAZY
|“The Supreme Court tries to remain above the partisan fray. But it was fitting in these politically perilous times, perhaps, that the justices raised the curtain on their 2019 term Monday with a debate about what it means to be insane.” That’s Richard Wolf with USA Today covering the first case of the new term heard yesterday, which involves a quadruple murder committed by a Kansas man seeking to use an insanity defense. However, Kansas removed the insanity defense a decade prior to when the murders took place.
IN HER WORDS
|Nina Totenberg with NPR provides us with a quick explainer on the history of the insanity defense. She said in her report, “The insanity defense dates back to well before the founding of this country. It’s based on the idea that mentally ill individuals who can’t differentiate right from wrong are not morally culpable. From the mid-1800’s through the end of the 20th century, American law pretty uniformly had a not guilty by reason of insanity defense, and 46 states still do provide for that defense, but Kansas and three other states do not. And the question is whether that violates the Constitution.”
THE DEEP END
|“This is an intelligent man, and he sneaked up on the house, where his wife and her mother and his children were staying. He killed his ex-wife. He killed her mother. He executed his two teenage daughters. One of them is heard on the tape crying. He, nevertheless, shot her to death.” Those are of the words of JUSTICE SAMUEL ALITO during yesterday’s argument, doing little to hide his perspective on the central question of the case out of Kansas. Adam Liptak with The New York Times writes, “In the first argument of its new term, the Supreme Court on Monday considered whether states may abolish the insanity defense, a question that seemed to puzzle several of the justices, who drew conflicting lessons from history, moral philosophy, constitutional law and the brutal crimes at the heart of the case.” He notes that JUSTICE RUTH BADER GINSBURG asked the first question, and JUSTICE STEPHEN BREYER noted that the issue at the heart of the case is a profound one. “It’s quite deep, this question,” he said.
HISTORY MATTERS
|Jess Bravin with The Wall Street Journal covers the Supreme Court’s Opening Day which addressed key questions of criminal law. In addition to the insanity question, justices also heard a case considering whether states can convict defendants absent a unanimous jury. That case involved a Louisiana man being sentenced to life in prison without parole after a jury convicted him of murder by a 10-2 vote. Bravin explains, “The justices have held that the Sixth Amendment right to a jury trial requires unanimity to convict in federal court, but a splintered court in 1972 found that states were free to use a lower threshold in their own trials.” During argument, JUSTICE BRETT KAVANAUGH suggested history mattered in considering the issue. The Louisiana’s rule, he said, was “rooted in racism, rooted in a desire, apparently, to diminish the voices of black jurors in the late 1890s,” when the state adopted its Jim Crow constitution enshrining white supremacy.
TOP-ED
|Will the Supreme Court hand PRESIDENT TRUMP more power? That’s the question behind an op-ed from Jed Handelsman Shugerman and Ethan J. Leib in The New York Times. They note that the Supreme Court could take up a case on whether the president can fire the heads of independent agencies, such as the Consumer Financial Protection Bureau, the Federal Reserve, the Federal Trade Commission and the Nuclear Regulatory Commission. They write, “Some self-professed textualists and originalists suggest that the Constitution requires a president to have unlimited discretion over removal. But the text on which they rely shows the opposite: The Constitution’s ‘faithful execution’ clauses impose a duty of good faith.”
SCOTUS VIEWS
The Supreme Court's Transgender Employment Discrimination Case Could Decide My Future Because I'm Trans
Teen Vogue“Currently, there is a haphazard patchwork of state laws, interpretations, and court rulings that prohibit workplace discrimination on the basis of sexual orientation or gender identity in line with the EEOC’s interpretation of Title VII. That the conversation has shifted from repealing anti-cross-dressing laws to actually granting us civil rights is, in and of itself, a huge testament to the progress that’s been made. But progress is not, by nature, a finish line; it is a marathon that we must keep running, even if it never ends.”
Men Get Stereotyped Too. It’s Time The Court Acknowledges It.
Slate“The trilogy of cases the United States Supreme Court will hear on Tuesday, R.G. and G.R. Harris Funeral Homes v. EEOC, Altitude Express v. Zarda, and Bostock v. Clayton County, are, at their core, about masculinity. The first case deals with transgender rights, and the other two concern sexual orientation. Together, they will force the court to take up the question of whether sex stereotypes are a reason to protect people who are assigned male at birth when they transition, or when they deviate from heterosexual norms. Workplace protections have already been expanded to combat discrimination against women based on stereotypes of femininity. It must also include protection for behavior that deviates from the binary definition of what it means to be a man.”
Why It Might Have Been Better If The Supreme Court Had Let Colleges Have ‘Quotas’
The Washington Post“It might have been better if the Supreme Court had allowed minority admissions ‘quotas’ for colleges and professional schools when it had the chance 40 years ago. That’s one way to read Judge Allison D. Burroughs’s Sept. 30 opinion upholding Harvard’s race-conscious undergraduate admissions process against a lawsuit from Asian American plaintiffs. They asserted that Harvard puts a de facto floor under African American and Latino admittances — at the cost of creating an unlawful ceiling on Asian Americans.”
OTHER NEWS
Victory For Disability Advocates: Supreme Court Won't Hear Domino's Pizza Accessibility Case
USA Today“The U.S. Supreme Court’s decision to not hear Domino’s petition on whether its website is accessible to the disabled is considered a loss for the pizza giant and a win for disability advocates. The case was one of a long list of those the Supreme Court announced it wouldn’t hear, and as is usual the high court made no comment in declining to take the case. Monday was the Supreme Court’s first day of arguments after its summer break.”
Supreme Court Asked To Decide If Electoral College Voters Are Bound To The State's Winner
CNN“If the Supreme Court agrees to hear the appeal of the so-called ‘faithless electors,’ it could thrust the justices into yet another high-passion political fight in the heat of the 2020 presidential election. It comes as some predict that the volatile political atmosphere and disputes over redistricting could further emphasize the role of the Electoral College in the upcoming election.”
U.S. Supreme Court To Hear Case Of Gas Pipeline Seeking To Cross Appalachian Trail In Va.
The Washington Post“The U.S. Supreme Court has agreed to consider whether a lower court was correct to block a major natural gas pipeline from crossing underneath the Appalachian Trail in the mountains of Virginia. The high court’s intervention could remove a barrier for construction of the $7.5 billion, 600-mile Atlantic Coast Pipeline, which has been halted for nearly a year because of various permitting woes.”