Why Roberts, Gorsuch Voted With Liberals on LGBT Case
Scott Applewhite)
In a ruling that surprised many, the U.S. Supreme Court on Monday held that the 1964 Civil Rights Act’s bar on discrimination because of sex also prohibits discrimination because of sexual orientation or being transgender. It also surprised some observers that this was a 6-3 decision, authored by conservative Justice Neil Gorsuch and joined by Chief Justice John Roberts. It should not have been surprising, however. I have three thoughts on this.

First, Roberts’ vote may have been strategic. For all intents and purposes, the chief justice of the United States is just another justice, with one vote. There is, however, one important perquisite afforded the job: He (or she, eventually) is immediately the most senior member of the court. This is important because the most senior justice in the majority determines who authors the opinion. Had Roberts dissented, the task of assigning the majority opinion would have fallen to Ruth Bader Ginsburg, probably the most liberal justice on the court.

Why might Roberts have voted strategically? He strongly dissented in what could collectively be called “the marriage equality cases,” a set of decisions that established the constitutional right to marry regardless of sex. Moreover, at oral argument in this case he seemed quite hostile to the points presented by plaintiffs.

Now, oral arguments are not necessarily indicative of how a case will eventually turn out. Roberts’ vote may be entirely sincere. At the same time, we should note that there are multiple instances of chief justices joining majorities to produce a more ideologically sympathetic outcome. According to Bob Woodward’s “The Brethren,” Warren Burger routinely did this, especially once William Brennan became the senior associate justice. It is widely assumed that Chief Justice William Rehnquist’s vote in United States v. Dickerson (a case involving the rights of criminal suspects) was cast because it was clear that the conservative position on Miranda was not going to carry the day, and he would write a more limited opinion than the most senior associate justice, John Paul Stevens.

So we likely won’t know for years, until the court’s papers are opened after justices depart, whether Roberts voted strategically. But it is certainly possible and, in my estimation, likely.

Second, and this may be counterintuitive to many, this decision is fully consistent with conservative jurisprudence as it has developed over the past 50 years. While it does not deliver a conservative outcome, it is an example of smart lawyering delivering an exceedingly clever argument designed to appeal to the conservative justices.

For years, conservative justices have worked to prohibit the court from attempting to divine congressional intent from statutes, and instead have focused on the statute’s text. This inhibits the liberal justices’ ability to broaden statutes’ reach based upon some broad principle enunciated by one or more legislators during the passage of the law. This practice is something that justices such as Brennan detested, recognizing that this would overall weaken the liberal project.

Note that this stands in contrast to the conservative approach to constitutional interpretation, which focuses on the text and the intent of the Framers of our governing document and its amendments. An extreme example of this is 11th Amendment jurisprudence. The plain text of the amendment merely prevents states from being sued in federal court by a citizen of another state. It is clear from the context of the passage of that amendment, however, that it was intended to have a much broader reach. It is that understanding that conservatives emphasize when interpreting the amendment.

Regardless, under contemporary conservative interpretive approaches, courts should look to the plain meaning of the statute, rather than trying to figure out what Congress really wanted to say. In this instance, that cuts against a conservative outcome. Everyone agrees that Congress did not intend to prohibit discrimination on the basis of transgender status or sexual orientation; an amendment to that effect likely would have received a handful of votes at best.

Given this, conservative justices could not point to congressional intent to defeat plaintiffs’ argument. At the same time, plaintiffs couldn’t point to some broad purpose of the law (“to help marginalized individuals achieve employment justice”) that a liberal justice might find appealing.

Instead, the argument went like this: Imagine a workplace with three employees: Amy, Bill and Chuck. Amy declares her love for Chuck. The next day, Bill declares his love for Chuck. The argument was that the employer can fire both Amy and Bill for violating a prohibition against workplace romances.

What the employer cannot do is fire Bill because of a workplace prohibition on same-sex romances. The reason has nothing to do with Bill’s sexual orientation, at least as such. Instead, it has to do with Bill’s sex. Firing Bill but not Amy says that a woman may declare her love for a man in the office, but a male may not. The employer is inherently creating a categorization based on sex, which the Civil Rights Act flatly prohibits (in fact, the CRA does spell out some instances where employers can discriminate on the basis of sex, the so-called bona fide occupational qualification exception, but the fact that Congress made some exceptions but did not also spell out an exception based on sexual orientation works against conservatives here).

This is, again, an exceedingly clever argument. If you are having trouble seeing it, make Bill a black man and Chuck and Amy white, and try to come up with a reason why the employer can fire Bill for declaring his love for Amy, but not Chuck. It is very difficult, if not impossible, to do so.

Or, consider an example from Justice Samuel Alito’s dissent. He suggests that a woman who is a model employee, but is fired after bringing her wife to a Christmas party, is plainly being fired on the basis of sexual orientation, not sex. According to Alito, the only new information gleaned is the employee’s sexual orientation. But this misses the mark. The employer has also learned that the woman is married to a woman, something that would be of no consequence for a man. By burdening that relationship, the employer is treating female employees differently than male employees.

There are some consequences for the way this argument runs. Because discrimination on the basis of sexual orientation and transgender status is not prohibited as such, employers can probably announce their displeasure at gay or transgender individuals in the workplace in a way that they cannot with women or racial minorities. Counsel for the plaintiffs also conceded at argument that a company that prohibited gays or lesbians from working at the establishment but made those decisions before learning the applicant’s sex might be immune from suit.

Perhaps more importantly, the court sidestepped the question of whether the Religious Freedom Restoration Act of 1993, which keeps laws from being interpreted in a way that burdens religious belief, creates an exception here. That will be a battle fought in subsequent years, and it will be nuclear.

Conservatives also object to this with a parade of horribles – what about bathrooms, maternity/paternity leave, etc.? I don’t know if there is some way to distinguish those cases but if not, the answer is regularly urged by conservatives: If Congress doesn’t like the law, it can fix it.  This is regularly offered up even in the context of constitutional amendments, which are virtually impossible to pass these days; it is a lower bar for legislation. Of course, the issue is that Congress won’t pass such fixes, but that is ultimately on the voters, not on the court.

Third, and finally, we should note that there are four checks on the court. The first two have, respectively, never been used or haven’t been used in over a century: impeaching and removing a justice, or packing/shrinking the court. The third is to control the presidency and/or the Senate; the ability to do so, or the failure to do so, has resulted in or prevented sea changes in the court’s jurisprudence in 1968/69, 1985, 1987, 2016, and 2018.

The final check, however, is time. We don’t have live debates over the acceptability of paper money or judicial review, notwithstanding the fact that those were once live controversies.  One justice seems prepared to revisit the constitutionality of the New Deal. Time has simply moved on, and justices are ultimately products of that time.

If we’re right about Chief Justice Roberts’ motivations, we see this generational split emerge among the court’s conservatives. For the boomer conservatives, including Alito, Clarence Thomas, and Roberts, the fight over gay rights is very much a live debate. For Gen Xers, and especially millennials, even among conservatives there is growing acceptance of sexual minorities. Combined with a rationale that is consistent with their jurisprudential approach, the arguments here will be much more appealing.

So it isn’t surprising that Gorsuch wrote this opinion, or that Brett Kavanaugh wrote a measured dissent and failed to join Alito’s more strident opinion. We see the younger conservatives appearing more libertarian on criminal rights as well, having not experienced the crime wave of 1965-95 in the same way that boomers did. Ultimately the court does not get too far out of step with public opinion, because ultimately its members cannot be removed from the context of that opinion.

Sean Trende is senior elections analyst for RealClearPolitics. He is a co-author of the 2014 Almanac of American Politics and author of The Lost Majority. He can be reached at strende@realclearpolitics.com. Follow him on Twitter @SeanTrende.